1. The plaintiff sued for a declaration that he is the owner of the plaint schedule property and for possession and mesne profits after redemption from the mortgage with possession in favour of defendant 1. The learned Munsiff of Himsur who tried the suit passed a decree in favour of the plaintiff. On appeal the learned Subordinate Judge of Mysore reversed the same; and hence this second appeal by the plaintiff.
2. It is the case of both the parties that the property in suit belonged to Chikkamma, mother of defendant 2. She alone mortgaged it with possession for a period of 10 years to defendant 1 for Rs. 100/- under Ex. I, dated 8-5-1933. Subsequently, according to the plaintiff, she and defendant 1 sold it to one Nanjappa Gowda along with some other properties under a sale-deed, dated 4-10-1943. Afterwards the latter sold the said properties to plaintiff under a registered sale-deed dated 28-2-1945. After the expiry of the period fixed in the mortgage deed the plaintiff issued a notice-on 6-7-1945 to defendant 1 offering to redeem and sent a money order for Rs. 100/- but defendant 1 refused to receive the amount and deliver up possession. The main plea of the defendants was that the property had not been validly conveyed by Chickkamma to Nanjappa Gowda and by him to the plaintiff, that defendant 2 had already paid the amount due to defendant 1 and redeemed him and that the plaintiff could not therefore seek to redeem him again as the mortgage had been satisfied. The defendants also questioned the genuineness of the sale-deed Ex. A. by Chickkamma and defendant 1 in favour of Nanjappa Gowda and Ex. B. executed by the latter in favour of the plaintiff. Both the Courts have found against the defendants in this matter and those findings have become final.
3. The sale-deed Ex. A purports to be executed by defendant 1 and Chikkamma as guardian and mother of Chikkegowda, her minor second son (who is now reported to have died during his minority) for Rs. 400/- out of which Rs. 50/- was mid in cash and Rs. 350/- was to be retained by the purchaser to discharge three prior mortgage debts including the one due to defendant 1 and obtain possession of the suit property. The vendors declare that after the sale they have no right, title or interest whatever in the properties sold and agree to indemnify the purchaser in case of any disputes. The properties are described as having been got by Chikkamma through a will from her brother Javare Gowda and in the possession and enjoyment of the vendors. The deed, however, bears the L. T, mark of defendant 2 and the L. T. mark of Chikkamma. Both of them have appeared before the Sub-Registrar of Hunsur and admitted execution and the document has been duly registered.
4. It was contended for the defendants that Ex. A., has not been executed by Chikkamma for herself but only as guardian of her minor son arid did not convey any of her title in favour of the purchaser. It is seen from Ex. A., that though in the opening lines of the document Chikkamma is described as executing the deed as guardian of her minor son, her L. T. Mark or signature is put in without any such qualification. There can be no doubt, the intention of the parties to Ex. A was to convey the properties to Nanjappa Gowda and not to execute a nominal or sham or illusory document with any ulterior motive. The title of Chikkamma, who in fact was their real and sole owner, was fully disclosed in the deed itself and there was an express representation by the executants including Chikkamma that they had no further right, title or interest in the properties sold. Chikkamma's title was not reserved and indeed the document would have been probably worth nothing if it did not intend to convey all of. Chikkamma's rights. Chikkamma was throughout present and it is nobody's case that she was either Impale or unwilling to execute the deed for herself-also when she unreservedly put her L. T. mark to the document and afterwards admitted execution before the Sub-Registrar. In the circumstances it would be more reasonable to assume that Chikkamma executed Ex. A, for herself alone and that defendant 1 and her minor son's name were included in the deed merely by way of caution, to avoid any future claims by them. The previous mortgage deed, Ex. I, had been executed by Chikkamma alone and in the sale-deed Ex. A, the purchaser Nanjappa Gowda was asked to discharge that mortgage and therefore Chikkamma was necessarily bound to execute the sale-deed also. Even if in the opening portion of the sale-deed Chikkamma was not described as one of the executants, but if she did as a matter of fact execute it and admit execution, the legal consequences would follow and all her rights would be conveyed unless it was shown that she did so not in her individual capacity but only as guardian of her minor son.
5. Defendant 2 has duly executed the sale-deed and it does not lie in his mouth to impeach it when Chikkamma herself has not done so in any proceeding of her own. She could not do so either. She would be clearly estopped from setting up any title of her own so as to defeat the sale-deed which she has executed. She would in any event be deemed to have chosen to waive her own rights in the property in favour of Lakke Gowda and her second minor son by representing and dealing with the property as theirs exclusively while executing Ex. I. Her minor second son is also since dead and she would be his nearest heir in accordance with Hindu Law and as such she would be bound by the alienation she may have effected as his guardian. On that ground also she would not be entitled to question the sale-deed Ex. A.
6. It was argued that she was a necessary party to this suit. It is difficult to see how it is so as she had sold away the properties under Ex. A. The legal effect of such execution may also be considered. Mr. V. Krishnamurthi, the learned. Advocate for the appellant, has referred to a case reported in '19 Mys. H C R 255.' In that case a sale-deed was executed by the mother and grandmother of two plaintiffs who were minors at the-time. The deed recited that the land was in the possession and enjoyment of the two executants. The purpose of the sale was found to be for legal necessity and benefit binding on the minors. In a suit by the minors after attaining majority to re-cover possession of the property it was contended that the sale-deed could not bind them because it was not executed by the executants in their capacity as guardians. That contention was rejected by this Court. Wallace, J., in the course of his judgment observes that the sale-deed evidenced an alienation which could legally have been made by the actual executants only as guardian of the minors.
'It is clear' he points out 'that the parties to the document knew that they were dealing with the minors' property and had no right to deal with it otherwise.'
And it was held 'that the document must be interpreted in the light of those facts' and was binding on the minors though the document did not expressly purport to deal with the minors' estate. That principle is clearly applicable to the present case even with greater force for, we are hero dealing with a sale by a adult of her own property to discharge an earlier mortgage created by her and by giving effect to such an interpretation we are not likely to prejudice the rights of any one else,
7. In 'Landes v. Marques', (1909) 25 T. L R 478. where a cheque drawn in favour of the plaintiff was stamped near the top with the words 'B. Marques & Co., Ltd.' and signed -- B. Marques, Director, H. S. Davis, Director, it was held that the two Directors were personally liable on the cheque, the reason being that though the directors described themselves as directors they did not promise to pay on behalf of the company, and had merely signed the notes as directors without any addition to their signatures indicating that they signed for and on behalf of the company.
8. The legal effect of Chikkamma's admission of execution before the Sub-Registrar may also be considered. In '16 Mys. L J 249', it has been held that the legal effect of the admission of execution. before a Sub-Registrar is that the executant enters into obligation under it. in that case 'Puranchand v Monmotho Nath', 55 Cal 532, has been referred to and relied on. In the latter case it was contended that the word 'executing' in Section 35. Registration Act only meant actually signing. Their Lordships of the Privy Council rejected the contention observing :
'Their Lordships cannot accept this. A document is executed when those who take benefits and obligations under it have put or have caused to be put their names to it. Hence the words 'person executing' in the Act cannot be read merely as ' person signing.' They mean something more, namely, the parson who by a valid execution enters into obligation under the instrument. When the appearance referred to is for the purpose of admitting the execution already accomplished, there is nothing to prevent the securing person appearing either in person or by any authorised and competent attorney in order to make a valid admission. Their Lordships have failed to find in the schema of the Act anything repugnant to this construction, Any other would involve risk of confusion and might even defeat the statutory procedure, etc.'
9. It had also been contended for the respondents that the mortgage under Ex. 1 having been discharged by payment by defendant 2, there is now no mortgage in existence which the plaintiff can redeem and that his present suit for that purpose 33 infructuous. It must be remembered that the plaintiff has brought this suit not only for redemption but also for a declaration of his title and possession. He has impleaded as defendants both defendant 1, the mortgagee, and defendant 2, the person who is said to have redeemed him. In the view we have taken of the legal effect of EX. A the plaintiff is the proper parson who has the right to redeem having acquired the right by purchase from the owner and mortgagor Chikkamma. Defendant 2 had no right to do so and defendant l cannot absolve himself from liability as mortgagee if he allowed himself to is paid off and redeemed by some one who was not entitled to do BO. The effect on the mortgage of such payment has been discussed fully Mootha Chettiam Vestikelu v. Chekkara Gheppan, A. I. R (24) 1937 Mad. 45 where it has been held :
'that if a person believes in good faith that he is entitled to redeem the mortgage either under the belief that he is the mortgagor of that he has some other light in the property which would entitle him to redeem, he would be entitled to the rights of the mortgagee by way of subrogation or a like equitable principle. When a person who is not a mortgagor, under a mistaken claim, pays off a mortgage debt, he cannot extinguish it; for he has no eight to do BO. The only person who can extinguish the mortgage is the person who is entitled to redeem that mortgage and merge the mortgage in his own rights of mortgagor or mortgagee.'
In that case the person who paid off the mortgage was held entitled to be surrogated to the rights of the mortgagee and to be redeemed by the plaintiff before he gave up possession In the present case there are really no bona fides in the conduct of defendant 2 and there is strong reason to think that he and defendant 1 are acting in collusion and we may be justified in refusing the benefit of such redemption to defendant 2, Defendant 1 has deposed that defendant 2 paid the mortgage-amount to him about 3 years ago. But he admits only after he is confronted with the postal acknowledgment EX, F that he received ft notice from the plaintiff on 17-3-41 and that ho did not send any reply to it, that he informed defendant 2 and Chikkamma of the notice and they offered to redeem the mortgage only afterwards and that he did not care to trouble himself about the rival claims and was content to receive the amount from any one. A mortgagee with possession could not so casually discharge himself from his duties and liabilities to the real owner. It is therefore, very doubtful if he has been redeemed at all and if he is not playing up defendant 2 against the plaintiff in order to remain in possession as long as possible. But as the plaintiff himself has offered to redeem by paying Rs. 100 and the learned Munsiff has passed a decree for redemption and possession against both the defendants, there is no need to consider that aspect of the matter.
10. We therefore, allow this appeal, set aside the judgment and decree of the subordinate Judge and restore those of the Munsiff with costs throughout.
11. Appeal allowed.