SULTAN PILLAI Vs. PERRUKANNU

JUDGEMENT

(1.) THE plaintiff who is the appellant,sued his children defendants 1 to 6,for partition of a property,16 cents in extent,described in A schedule and the building situated in it and described in B schedule.The suit stands allowed by the District Judge on appeal only to the extent of 2 cents of the property in A schedule,in modification of the decree of the Munsiff allowing the suit.A schedule property belonged to Usanaru Pillai and was mortgaged by him on the 23rd Makarom,1123,by Ex.P -3,to the plaintiff and defendants 1 to 6,providing inter alia for the discharge of the decree in O.S.1305 off 1119 charged on 14 cents of A schedule property.But the sale of 14 cents in execution of the decree had already taken place,though this fact was not mentioned or taken note of in Ex.P -3.So,under law,Ex.P -3 was of no avail against the purchaser in execution.On the 32nd Edavom 1124,the second defendant took from the purchaser,Ex.P -1 sale deed in his name for 14 cents,with authority to obtain delivery of possession.Accordingly the second defendant purported to take delivery of possession in execution of the decree under Ex.D -8 delivery list,dated the 16th Vrischigom,1125.Subsequently,the equity of redemp­tion of the remaining 2 cents of A schedule property was purchased by the plaintiff and defendants 1 to 6,under Ex.P -2,dated the 13th Karkadakam,1125,from Usanaru Pillai.The building in B schedule was constructed after the date of Ex.P -3.Alleging that the purchase under Ex.P -1 was for the benefit of all of them,the plaintiff has sued for partition of 1/7 share of A and B schedule properties.Though the first court held that the purchase under Ex.P -1 enured to all of them,on appeal it was held,that Ex.P -1 was taken and the building was constructed,with the second defendant's funds and that therefore only the equity of redemption of two cents purchased under Ex.P -2 could be partitioned.

(2.) IN second appeal,learned counsel for the plaintiff was content to accept the above finding of fact,but still he contended,that A schedule property is partible.This contention was advanced mainly on the stipulations in Ex -P -3 Out of the mortgage amount of Rs - 800,a sum of Rs.300 was reserved with the mortgagees to be paid to the mortgagor to discharge the decree in O.S.1305 of 1119 himself,with a provision that in the event of his failure to do so,the mortgagees might themselves discharge the decree with the amount reserved which was stated to be with the second defendant,and if it was not sufficient,the second defendant might himself make good the amount and recoup the same from the mortgagor,and the mortgaged property.It is evident from Ex.P -3 that of the mortgagees,the second defen­dant was playing an important role.Though it is not clear from Ex.P -3 how the sum of Rs.300 was stated in it to be available with the second defendant,there is no doubt that the amount was part of the mortgage amount.Anything,in excess,if necessary to be paid,had to be by the second defendant and such excess would also be part of the mortgage amount,though he might put forward a special claim to it.Ex.P -3 has thus indubitably cast a special duty on the second defendant on behalf of the rest of the mortgagees in the discharge of the decree debt.The sale having taken place before Ex.P -3,the only feasible mode of discharge was by purchasing the rights of the purchaser at the execution sale,preferably before he took delivery of possession of the property.This was what really happened.The consideration of 3500 fs.for Ex.P -1 was satisfied by a cash payment of 2800 fs .,and by the execution of a simple mortgage for 700 fs.in favour of the vendor under Ex.P -1 and his wife.Though on the finding of the lower court the funds for taking Ex.P -1 came from the second defendant,it was an amount which could be charged to the mortgage transaction;in fact,Rs.300 had already been treated as mortgage amount and the balance also,as the mortgagor had agreed,was charge­able to the mortgagor's account.It is on these premises,that the rights of the parties have to be adjudged.Thus in Ex.P -3,the parties appear to have taken note of the possibility of the amount reserved proving inadequate and yet provided for the preservation of their joint interest under it,and imposed a special obligation on the second defendant to act for the benefit of all of them.The least that the second defendant ought to abstain from doing is,resorting to any means without the consent of the others,by which the rights of the latter might be destroyed or impaired,or his own right enlarged to the prejudice of those of the others.

(3.) IN my opinion,these principles are of general appli­cation equally in India and underlie sections 88 and 90 of the Indian Trusts Act,1882.From the summary of the evidence discussed above and the surrounding circumstances,I find little difficulty in holding that the second defendant was bound in a fiduciary capacity to protect the interests of the others,from assault by the interest of the decree -holder in O -S - 1305 of 1119.Enjoying a position of trust and confidence towards the others and having clothed himself by Ex.P -3 with authority to spend his own money,he took Ex.P -1,which I regard as nothing more nor less than a discharge of the debt.Ex.D -8 delivery list meant nothing,as it purported to operate only against Usanaru Pillai the mortgagor,and another and not against the plaintiff or defendants 1 and 3 to 6.It is true that the plaintiff did not plead in so many terms,that the purchase under Ex.P -1,even if made with the second defendant's funds would enure to all of them;but it arises on the finding of fact now recorded and on the application of the provisions of Ex.P -3 to it.The reference in Ex.P -2,the subsequent sale deed in their joint names,to the equity of redemption of 14 cents,as that of the second defendant,is not to be read as an admission by the others;simply for the reason that they claim the benefit of the purchase under Ex.P -2,they are not bound by every statement or rectal of fact in it.I therefore come to the conclusion that the purchase under Ex.P -1 enured to the benefit of the plaintiff and defendants 1 to 6.Accordingly,14 cents in A schedule also is partible subject to the claim of the second defendant for reimbursement of the sum of 3500 -fs.less his own share therein.The building in B schedule belongs to the second defendant exclusively and appropriate provision will be made concerning it,in the final decree,having regard to the equities of the case. In the result,in modification of the decree of the District Judge,the plaintiff is given a decree to have his 1/7 share of A schedule property partitioned by metes and bounds.Defendants 1 and 3 to 6 are also entitled to 5/7 of A schedule property.Appropriate provision will be made in the final decree consistent with the equities of the case as regards the building described in B schedule.The plaintiff having lost in his contention that Ex.P -1 was taken with common funds,shall pay the second defendant,his costs in the two courts below,but the parties shall bear their costs in this Court.The second appeal is allowed to the above extent.