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Atmakuri Seetharamamurthi and ors. Vs. Jammulu Rangayya and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1928Mad293
AppellantAtmakuri Seetharamamurthi and ors.
RespondentJammulu Rangayya and ors.
Cases ReferredIn Audimula Mudali v. Alemelu Ammal
Excerpt:
- .....property really belonged. the plaintiffs are, therefore, entitled to a decree against the joint family property in so far as the money borrowed is found to have been borrowed for family purposes. the district judge, taking the view he did, has held that it was unnecessary to determine finally the amount of the consideration which was binding upon the family, but was inclined to hold that the amount was rs. 590. both parties accept this as a definite finding now and it must be taken that, to the extent of rs. 590, the loan was utilized for family purposes.2. there must, therefore, be a mortgage decree against the mortgaged property including the interests of the sons to the extent of rs. 590 and a mortgage decree of rs. 1,410 and interest against defendant's share alone. should the.....
Judgment:

1. Defendant 1, who is the father of defendants 2 to 6, executed a mortgage for Rs. 2,000 in favour of the plaintiffs' deceased father purporting to mortgage his self-acquired property. The plaintiffs sought to make the sons also liable under this mortgage, but the District Judge has held that defendant 1 did not purport to mortgage the ancestral property and the mortgagee did not contemplate the ancestral property as forming part of his security, and has given a decree only against defendant 1's share in the mortgaged property which has been found to be the ancestral and not the self-acquired property of defendant 1. In Audimula Mudali v. Alemelu Ammal [1916] 2 M.W.N. 115, a case to which one of us was a party, it was held, in the case of a similar mortgage, that the Court should incline to the view that a transferrer alienated the property in the capacity most favourable to a bona fide purchaser. Applying that principle here, defendant 1 must be deemed to have mortgaged the property not only as his self-acquired property, but also as manager of a joint Hindu family to which the property really belonged. The plaintiffs are, therefore, entitled to a decree against the joint family property in so far as the money borrowed is found to have been borrowed for family purposes. The District Judge, taking the view he did, has held that it was unnecessary to determine finally the amount of the consideration which was binding upon the family, but was inclined to hold that the amount was Rs. 590. Both parties accept this as a definite finding now and it must be taken that, to the extent of Rs. 590, the loan was utilized for family purposes.

2. There must, therefore, be a mortgage decree against the mortgaged property including the interests of the sons to the extent of Rs. 590 and a mortgage decree of Rs. 1,410 and interest against defendant's share alone. Should the security prove insufficient to discharge the mortgage debt, the plaintiffs will be at liberty to apply for a personal decree against defendant 1. As regards costs, the plaintiffs are entitled to get their costs, throughout as against defendant 1, and in appeal, against defendants 2 to 6. In the lower Court, defendants 2 to 6 will bear their own costs. The costs advanced by the appellants to the Court guardians will be included in their costs. Time for payment six months.


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