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Chakrapu Anjaneyulu and ors. Vs. Kalakoti Saravayya and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported inAIR1946Mad154; (1945)2MLJ411
AppellantChakrapu Anjaneyulu and ors.
RespondentKalakoti Saravayya and ors.
Cases ReferredViswanadham v. Venkayala Appalanarasayya
Excerpt:
- - 411 of 1944 must fail because the antecedent promissory note which is discharged by the mortgage is not in favour of the second mortgagee but in favour of the second mortgagee's adoptive mother and obviously one cannot go into the question whether she was a benamidar for her husband......is that a debt due to a and another debt due by the same debtors to b have been discharged by a joint mortgage executed by the debtors in favour of a and b. the lower court has treated the mortgage as if it were not one debt but two debts and has scaled down each portion separately. c.m.a. no. 411 of 1944 is an appeal by the mortgagors in respect of the disallowance of their claim to relief having regard to the antecedent history of the portion of the mortgage debt due to second mortgagee. c.m.a. no. 568 of 1944 is an appeal by the first mortgagee against the relief given to the mortgagors in respect of the antecedent history of the portion of the debt due to him.3. quite apart from the question whether there is any renewal at all by the joint mortgage, it is plain that the contention.....
Judgment:

Wadsworth, J.

1. These two appeals arise out of an application to declare the amount due under a mortgage, applying Madras Act IV of 1938 and the rules framed thereunder. The mortgage in question is Ex. D-1 dated 20th November, 1936, for a sum of Rs. 6,680 in favour of two persons each of whom was previously entitled to amounts from the debtors which were equalised and clubbed together in the joint transaction. There is nothing in the recitals of the mortgage Ex. D-1 to indicate that the debts due to each of the two mortgagees separately were to be kept separate under the mortgage contract.

2. The position therefore is that a debt due to A and another debt due by the same debtors to B have been discharged by a joint mortgage executed by the debtors in favour of A and B. The lower Court has treated the mortgage as if it were not one debt but two debts and has scaled down each portion separately. C.M.A. No. 411 of 1944 is an appeal by the mortgagors in respect of the disallowance of their claim to relief having regard to the antecedent history of the portion of the mortgage debt due to second mortgagee. C.M.A. No. 568 of 1944 is an appeal by the first mortgagee against the relief given to the mortgagors in respect of the antecedent history of the portion of the debt due to him.

3. Quite apart from the question whether there is any renewal at all by the joint mortgage, it is plain that the contention of the appellants in C.M.A. No. 411 of 1944 must fail because the antecedent promissory note which is discharged by the mortgage is not in favour of the second mortgagee but in favour of the second mortgagee's adoptive mother and obviously one cannot go into the question whether she was a benamidar for her husband. There can be no renewal of an anterior debt in favour of a different creditor.

4. The appeal of the first mortgagee raises the basic question whether there can be any renewal at all in the present circumstance. It has been repeatedly held that when a debt due to A and B is discharged by the execution of another document in favour of A alone, there is no renewal because the creditors are not the same--vide Swami Setti v. Lakshmireddi (1944) 2 M.L.J. 142 and Balireddi Vissanna alias Viswanadham v. Venkayala Appalanarasayya (1944) 2 M.L.J. 390 . It was held by one of us in an unreported case--C.R.P. No. 2050 of 1940--that when a promissory note in favour of A is discharged by another promissory note in favour of A and B, there is no renewal because the creditor is not the same. It seems to us that the same principle must apply here. No doubt this is a clubbing of two debts each due to one of the joint mortgagees at the time of the execution of the joint mortgage; but in substance what we have to decide is whether the discharge of a debt in favour of A by the execution of a new document in favour of A and B is a renewal and whether the discharge of a debt in favour of B by the execution of a new document in favour of A and B is a renewal. It seems to us that the two joint creditors cannot be deemed to be the same creditors as either or both of the two individual creditors acting separately and independently of each. other. In this view we dismiss C.M.A. No. 41,1 of 1944 with costs and we allow G.M.A. No. 568 of 1944 with costs and there will be a declaration that the amount due on the mortgage is the principal sum of Rs. 6,680 with interest at 5 per cent. from 20th November, 1936, up to the 22nd March, 1938, and thereafter at 6 per cent. per annum, the payment of Rs. 400 being adjusted to principal as on the 1st April, 1937.


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