Ratna Mudaliar vs Ellammal and Others

The plaintiff is the appellant before us. The suit was brought on the footing of a mortgage-bond Ex. A, dated 26th June 1916, to recover the

money due under it. It was executed by five persons. They are: the husband of defendant 1, defendant 2 and defendants 3, 4 and 5. Defendants 6

to 11 are defendant 3''s sons and 12 to 17 are defendant 4''s sons. The suit is contested by defendants 6 to 17 on the ground that the mortgage

was executed for purposes not binding on the sons. The Subordinate Judge gave partial effect to this plea and the plaintiff appeals.

All the contesting defendants 6, 7, 12 and 13 were born at the time of the mortgage and the other defendants were not in existence at the time of

the mortgage. They would be bound by the mortgage document in any event. But apart from this when we examine the purposes for which Ex. A

was executed we find that it was executed for two items, one item for Rs. 800 due on a promissory note and the other item for Rs. 1,500 and the

necessity for the latter is stated in the document as follows:

On account of our urgent necessity to pay kist and to discharge certain debts the amount we have received from you in cash this day is Rs. 1,500.

Now we find that defendant 3 was the moniagar of the Mahant of Thirupathi and that he collected certain amounts from the ryots and the

amounts so collected ought to have been remitted on 29th June 19i6. Defendant 3 seems to have misused it for family purposes or other purposes.

Now to send this amount in time he borrowed under Ex. A. Ex. 1 was produced by the defendants to show that Rs. 1,543 was remitted by

defendant 3 to the Mahant of Thirupathi. The recital in Ex. A is corroborated by Ex. 1 and by the plea of the defendants. The purpose was really

to remit to the Mahant of Thirupathi the amount which defendant 3 was unable to remit he having used the amount so collected. The question is

whether the mortgage for such a purpose is binding on the sons. The decision in Venugopal Naidu v. Ramanatha Chetty [1914] 37 Mad. 458

shows that a mortgage made for such a purpose would be binding on the sons even if the offence of criminal misappropriation is involved in the

transaction. We are content to follow that decision. The result is this mortgage is binding upon all defendants 8 to 17. (The rest of the judgment is

not material for our report).