JUDGMENT
1. We concur with the Subordinate Judge’s finding that the evidence adduced on behalf of the plaintiff is not sufficient to establish that the principal of the mortgage bond was lent out of the funds of the plaintiff’s tarward. The evidence adduced on behalf of the first defendant coupled with the nature of the transaction evidenced by the mortgage bond, clearly establishes in our opinion that on the occasion of first defendant’s marriage with Korga Chetti, the nephew of the plaintiff, the sum of Rs. 4,000 in question was settled by the first defendant’s mother either on the first defendant herself or on Koraga Chetti, but it is. difficult to say upon which of the two it was really settled. But in the view which we take of the case it is immaterial upon whom it was really settled, or whether it was settled upon both jointly. Under the terms of the mortgage instrument which was executed by the mortgagors, the second and third defendants, in favour of both Koraga Chetti and first defendant, interest was payable annually to both Koraga Chetti and first defendant jointly except the interest for the last year of the term of mortgage which interest along with the principal of the mortgage debt, was payable to first defendant only. Whether the Rs. 4,000 in question belonged exclusively to first defendant or Koraga Chetti deceased, or to both jointly, the mortgage instrument operates in law as between the first defendant and Koraga Chetti as entitling both jointly to the interest payable under the mortgage bond, except the interest due for the last year of the term of the mortgage, and the first defendant alone to the said last year’s interest and the principal of Rs. 4,000. Having regard to the decision of the Privy Council, Jogeswar Narain Deo v. Ram Chund Dutt L.R. 23 I.A. 37 : I.L.R. 23 Calc. 670, overruling the decision of this Court; Vydinada v. Nagammal I.L.R. 11 Mad. 258, we cannot accede to the contention of the learned pleader for the first defendant that on the death of Koraga Chetti the right to the whole interest payable yearly passed by survivor-‘ ship to the first defendant. In our opinion the interest accruing due since the death of Koraga Chetti belongs under Section 45 of the Contract Act to the plaintiff as the legal representative of Koraga Chetti and to the first defendant and the two will be entitled each to a moiety of the interest. The circumstance that Koraga Chetti and first defendant meant to live and were living together as husband and wife under the Aliyasantana law is not sufficient to raise the presumption of a contract that there was to be a right of succession by survivorship between them in respect of this fund of Rs. 4,000. The payment, if it be a fact, to the first defendant alone of the interest for 1897-98 after notice from the plaintiff not to pay the interest to first defendant, cannot bind the plaintiff and he is entitled to be paid his share of interest for that year, viz., Rs. 112-8-0, and both he and first defendant are jointly entitled to receive future interest and the first defendant alone the principal and the interest for the last year.
2. The decree will be modified by declaring that the plaintiff is entitled equally with the first defendant to the annual interest payable from 1898-99 to 1903-04 and to recover Rs. 112-8-0, as his share of interest for 1897-98. If the said amount of Rs. 112-8-0 with interest be not paid into Court by the second and third defendants on 8th February 1902, such portion only out of the mortgaged property as may be sufficient to realize the said amount, with interest till date of realization, shall be liable to be sold. The plaintiff and first defendant shall bear and pay costs proportionately both in the Original Court and in this Court. The decree appealed against is confirmed in other respects.
