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Ediga Seshanna and anr. Vs. R. Venkataramana Rao - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1941Mad60; (1940)2MLJ837
AppellantEdiga Seshanna and anr.
RespondentR. Venkataramana Rao
Cases ReferredPerianna v. Sellappa
Excerpt:
- .....the explanation to section 8 of madras act iv of 1938 to treat his mortgage as a renewal of his vendor's mortgage, which he has discharged. it has, however, been suggested on the reasoning in perianna v. sellappa : air1939mad186 , that at the moment when the sale to petitioner was completed there was created a liability in petitioner himself to discharge his vendor's mortgage and that this liability has been renewed or included in a fresh document by the execution of his own mortgage. we are of opinion that this theory of a discharge of a pre-existing liability of the petitioner himself scarcely accords with the facts. no doubt the sale was in theory anterior to the mortgage, but in point of fact they were both part of a single transaction carried through on the same clay and it was.....
Judgment:

1. Our decision in C.R.P. No. 113 of 1939 since reported in Neelappa Reddiar v. Solaimuthu Udayan : AIR1941Mad58 makes it clear that we approve the decision of Somayya, J., in In re Ramaszvami Chettiar : (1939)2MLJ609 and cannot agree that the petitioner is entitled under the explanation to Section 8 of Madras Act IV of 1938 to treat his mortgage as a renewal of his vendor's mortgage, which he has discharged. It has, however, been suggested on the reasoning in Perianna v. Sellappa : AIR1939Mad186 , that at the moment when the sale to petitioner was completed there was created a liability in petitioner himself to discharge his vendor's mortgage and that this liability has been renewed or included in a fresh document by the execution of his own mortgage. We are of opinion that this theory of a discharge of a pre-existing liability of the petitioner himself scarcely accords with the facts. No doubt the sale was in theory anterior to the mortgage, but in point of fact they were both part of a single transaction carried through on the same clay and it was not in the contemplation of the parties that the mortgage executed by the petitioner should discharge any pre-existing liability of the petitioner himself. It cannot therefore be said that the petitioner's mortgage was in fact a renewal of a previous debt due by him. The petition is therefore dismissed with costs.


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