The Nedungadi Bank Ltd. vs Thayarammal alias Mangayarkarasi Ammal of unsound mind. Arjuna Gramani is appointed guardian of Thayarammal alias Mangayarkarasi Ammal

It is only necessary to state the facts quite briefly. The appeal related to a suit by the mother of one Balakrishna Gramani by her next friend

Chellatnmal and two others. Balakrishna Gramani had executed a mortgage in favour of the respondent Bank. It was a suit to have that mortgage

so declared invalid and asking for its cancellation and other reliefs on the ground that Balakrishna Gramani was a minor on the date when he

executed the mortgage. Waller, J. before whom the suit came on the Original Side ruled against the plaintiff''s plea of minority of Balakrishna

Gramani and dismissed the suit. On appeal I and my learned brother Cornish, J. came to the conclusion that Balakrishna Gramani was a minor on

the date of the execution of the suit mortgage. We also came to the conclusion, that the money had been obtained from the Bank by means of a

fraud played upon the Bank and that the money was used for purposes binding upon the family. Under these circumstances we upheld the

plaintiff''s plea of minority of Balakrishna Gramani and at the same time granted relief to the defendant Bank. We directed that, on payment by the

appellants to the Bank on or before the 25th July, 1932 of the mortgage amount with interest, the mortgage deed executed by Balakrishna

Gramani in favour of the Bank was to be set aside and that the defendant Bank was thereupon to deliver up to the plaintiffs-appellants the

mortgage deed duly cancelled and all the title deeds of the mortgaged properties in their possession or power. The date specified, namely, the 25th

July, 1932 arrived and has long since passed. No effort whatever has been made by the appellants to pay the mortgage amount and interest to the

respondent Bank; and so far as our information goes, no interest has been paid upon the mortgage amount and no sum by way of repayment of

principal has been paid. The position, therefore, is that the appellants who have got from the appellate Court a decision on the question of minority

which of course means that the mortgage was void as against them and who are remaining in possession of the property are going to do nothing.

They are neither going to repay the principal nor make any payment towards interest. So far as they are concerned, in view of the appellate

Court''s decision on the minority question, the mortgage is a mlere piece of paper and they are, by reason of the appellate Court''s order, left in a

better position than that in which they were before they filed the suit. These observations are not intended to decide conclusively any question as to

whether in any suit which might hereafter be brought by the Bank upon the mortgage the appellants could successfully defend it. It is not necessary

for us here to make any observations with regard to-it and it being unnecessary it is undesirable that we should here say anything at all about the

Bank''s rights with regard to that mortgage and any suit based upon it. The question here is what is the proper order to make consequent upon the

appellate Court''s order made nearly three years ago. It has been suggested to us and with some force that, by reason of the appellate court''s

order and the form in which the decree is drawn up, it is to be taken as a decree for redemption and our attention has been directed to Idumba

Parayan and Others Vs. Pethi Reddi and Others, which we think we can accept as an authority in support of this proposition. The same or nearly

so position has been dealt with in other cases by Sir Walter Schwabe, C.J., in Abdul Shaker Sahib v. Abdul Rahiman Sahib I.L.R.(1922) 46

Mad. 148 : 44 M.L.J. 107 and also by Venkatasubba Rao, J. in a more recent case viz., Akshaya-lingam Pillai v. Avayambal Animal I.L.R.(1932)

56 Mad. 796 : 64 M.L.J. 536 where the rights of parties in suits claim specific performance are discussed. We think that Courts in making an

order such as we made intend to give reciprocal rights to all the parties concerned. Relief is given to the plaintiff. The plaintiff can redeem the

mortgage or get specific performance of his contract by fulfilling certain conditions. At the same time it is intended that the other party the defendant

should be given certain rights. I at clearly of the opinion that cases such as. this call for | reciprocity. That being so, it seems to me that the Bank,

the Respondents in the appeal - the petitioners in this petition are entitled to claim the benefit of Order 34, Rule 7, Civil Procedure Code, and to

ask for an order for the sale of the properties comprised in the mortgage. That being so, the C.M.P. is allowed and an order for the sale of the

properties comprised in the mortgage is made. The petitioners here will have their costs of this petition, Rs. 35.

Cornish, J.

I agree.