ANTHONYSWAMY Vs. M R CHINNASWAMY KOUNDAN

JUDGEMENT

(1.) This appeal is brought by certificate from the judgment of the High Court of Kerala dated July 13, 1960 in Appeal Suit No. 251 of 1956*. By its judgment the High Court allowed the appeal of the deceased M. R. Chinnaswamy Goundan, 1st defendant, reversing the judgment and decree of the Subordinate Judge of Chittur in O. S. No. 131 of 1950 which the appellant had filed on March 31, 1949 in forma pauperis for declaring that certain execution proceedings resulting in the sale of suit properties were invalid and for partition of onefourth share therein. The appellant also claimed in the alternative a decree for payment of Rs.30,000 as damages sustained by him on account of fraud and collusion in the execution proceedings.

(2.) The plaintiff is the son of the 8th defendant and the 9th defendant is the brother of the 8th defendant. The plaintiff and defendants 8 and 9 are Tamil Vannian Christians of Chittur Taluk who are governed in the matter of inheritance and succession by Hindu Mitakshara law. The plaintiff has acquired a right by birth in the ancestral properties and during the lifetime of his fahter the son has a right to claim partition. The plaint properties belonged to the family of plaintiff and defendants 8 and 9 which yield an annual profits of 4000 paras of paddy and Rs.1,500. Kanakappa Koundan, the father of 8th defendant became the manager of the family. He led an immoral life and incurred debts for immoral purposes. He hypothecated the family properties in the 5th defendant and obtained money. The 5th defendant sued upon the mortgage bond in O. S. No. 75 of 1107 (M. E.) of the Trichur District Court and impeaching the validity of the debts, the 9th defendant who was a minor at that time filed a suit for partition of his half share in O. S. 65 of 1107 (M. E.) in the same District Court. During the pendency of the two suits the 5th defendant applied for the appointment of a receiver and the Court appointed the 7th defendant, a friend of the 5th defendant, as receiver with a direction to pay Rs.40 per mensem to the 9th defendant as maintenance till the disposal of the suit. The plaint properties were committed to the possession of the 7th defendant as receiver in those suits.

(3.) The suit for partition was dismissed on November 14, 1933 as by this date the equity of redemption had been sold in execution of simple money decree against defendants 8 and 9 in O. S. 203 of 1107 (M. E. ). The 8th defendant for himself and as guardian of his younger brother executed a promissory note on 11-10-1105 (equivalent to May 1930) to one Somasundara Swamiyar for Rs.1,500 the consideration for which was paid partly in cash and partly in discharge of an earlier promissory note dated 11th Vaisakhi 1104 (June, 1929). The promise endorsed the note to Ramachandra Iyer on 24th Thulam 1107 (equivalent to November, 1932). Ramachandra Iyer filed a suit on this note, I. S. 213 of 1107 on 6-5-1107 (1931) against the 8th and 9th defendants. The suit was decreed and the decree-holder executed the decree. The disputed properties were attached. The properties at that time were in the possession of the 9th defendant for sometime as receiver and then in the hands of a vakil appointed by the Court in his place. In execution, one Harihara Subramania Iyer purchased the equity of redemption on 31st Karkatam 1108 (July-August, 1933). The auction-purchaser was duly put in possession on 22-3-1109 (1933). The mortgagee Sadasiva Iyer who had obtained a decree on one of the mortgages on 29-3-1109 (M. E.) purchased the property from the auction-purchaser on 5-5-1109 (1934). As possession had already been taken by the auction purchaser in execution of the decree passed against them, the 9th defendant did not press the partition suit - O. S. 65 of 1107. In 1938 Sadasiva Iyer was adjudged insolvent and the official receiver took possession. He sold the property in auction and the deceased 1st defendant became the purchaser for Rs.24,000. Exhibit XIV is the sale deed executed by the Official Receiver on 13-7-1116 (1941). The appellant thereafter brought the present suit for partition. The claim of the appellant was based on the allegation that Vannia Tamil Christians living in Chittur Taluk were governed as a matter of custom by the Mitakshara School of Hindu law. It was said that joint family relationship subsisted as between father and sons and where the father has inherited properties from his father, they became ancestral properties in his hands and so his sons acquired a right therein by birth including the right to claim the property by survivorship. It was also said that the decree debt in O. S. No. 213 of 1107 ME was not incurred for legal necessity but was incurred for immoral purposes and so the mortgage debts were not binding on the appellant. The appellant was, therefore, entitled to one-fourth share in the properties and to partition of his one-fourth share. The deceased, 1st defendant, contested the suit. He claimed to be a bona fide purchaser for value of the entire interest in the property from the Official Receiver in whom the properties had vested on the insolvency of Sadasiva Iyer. It was said that he had no notice to any vitiating circumstance affecting the title of public auction conducted by the Official Receiver. After the sale, defendant No.1 became the absolute owner of the properties and was in full possession and enjoyment of the same. It was also contended that the plaintiff could not claim any interest in the properties during the lifetime of his father. There was no customary right of birth in the community to which the plaintiff belonged and even if such right existed, the plaintiff was bound to pay off his father's debts on the doctrine of pious obligation before claiming any partition in respect of the properties. It was also said that the debt which was the basis of the decree in O. S. 213 of 1107 ME was not tainted by illegality or immorality.