KRISHNARAJAN Vs. DORASWAMY CHETTIAR

JUDGEMENT

(1.) The plaintiff who is the appellant has preferred this appeal against the preliminary decree in a suit for partition. The 3rd defendant is the mother of the first defendant while the plaintiff is the first defendant's son. The plaintiff and defendants 1 and 3 are governed by Hindu Mitakshara Law. The plaintiff claimed one half share in the plaint A and B schedule items on the ground that they are his joint family properties. The Trial Court dismissed the suit regarding A schedule properties and passed a preliminary decree allowing the plaintiff one half share in plaint B schedule items. In this appeal the plaintiff claims half share in the A schedule items as well.

(2.) The first defendant got the plaint B schedule items and a mortgage right of the value of Rs. 2000/- over the plaint A schedule items as per the partition deed Ext. A dated 6-1-1097 entered into between him and his brother's son. The properties thus obtained by the first defendant under Ext. A are the joint family properties of the first defendant and the plaintiff. The first defendant filed O. S. 64 of 1104 for enforcing the mortgage right and obtained a decree and in execution of the decree he purchased the plaint A schedule properties in court auction on 20-7-1112, evidenced by the sale certificate Ext. B6. In view of the court purchase the plaintiff chimed A schedule properties as joint family properties available for partition. The plaint A schedule properties were assigned by the first defendant and others under Ext. B10 dated 23-11-1113 in favour of the second defendant for Rs. 30,000/-. In the suit the plaintiff impeached Ext. B10 on the ground that it is not supported by legal necessity or benefit of the estate and the learned Judge upheld Ext. B10 and refused the claim of the plaintiff for a share in A schedule items.

(3.) The only question that falls to be decided in the appeal is whether Ext. B10 is binding on the plaintiff. To consider this point, it is necessary to state some more facts. The plaint A schedule properties originally belonged to one Pookottu Tarwad. The tarwad executed a mortgage with possession dated 7-5-1087 for Rs. 10,000 and a purakadom dated 14-8-1088 for Rs. 5,000/-in respect of the plaint A schedule properties in favour of Vydianatha Pattar and others. The mortgagor tarwad took back the properties on lease agreeing to pay an annual rent of Rs. 1012.50 besides the revenue of Rs. 325/- per year. Subsequent to these two mortgages the tarwad executed a simple mortgage on 1-8-1092 in respect of these items for Rs. 2,000/- in favour of one Appukutti Chetty who assigned his mortgage right in favour of Kandappan alias Kulathamman Chetty the brother of the first defendant on 13-10-1092. Ext. A1 is the partition between the first defendant and the son of Kandappan after the death of Kandappan and in Ext. Al this mortgage right was allotted to the share of the first defendant along with the B schedule items. Subsequent to the mortgage in favour of Appukutti Chetty the tarwad executed subsequent mortgages. The last of the mortgages was in favour of one Harihara Iyer and another for Rs. 4,000/- evidenced by Ext. B27 dated 4-1-1098. The first defendant filed O. S.64 of 1104 on the file of the District Court, Trichur on the mortgage dated 1-8-1092 and obtained a decree for sale. Ext. B5 is the judgment. Vydianatha Pattar or the subsequent mortgagees under Ext. B27 were not impleaded in the suit. In execution of the decree, the first defendant purchased the plaint A schedule items on 20-7-1112 for Rs. 8,000/- subject to the rights in favour of Vydianatha Pattar evidenced by Ext. D6, the sale certificate. The first defendant god delivery of possession of the A schedule properties. The court sale under Ext. B6 was subject to the rights of Vydianatha Pattar to the amounts due to him under the two prior mortgages of 1087 and 1083 and also to the rent due to him under the lease back from the year 1095 at the rate of Rs. 1012/- per annum with interest at 12 per cent per annum. The result of the purchase under Ext. B6 was that the joint family of the plaintiff became the owner of equity of redemption of A schedule items which they purchased in court auction for Rs. 8,000/- without impleading the subsequent mortgagee. That was the title of the plaintiff's family to A schedule items. In the meanwhile Vydianatha Pattar and others filed O. S.86 O. S. 1109 on the 61e of the Trichur District Court for recovery of the amounts due to them under the two earlier mortgages of 1087 and 1088 as also the arrears of rent. Ext. B7 is the copy of the plaint and Ext. B8 is the copy of the decree. The first defendant and the subsequent mortgagees under Ext. B27 were not impleaded. In execution of Ext. B8 Vydianatha Pattar purchased the A schedule properties in court auction on 21-7-1112 a day after the court sale in O. S.64 of 1104 for Rs 39,500/-. Ext. B is the sale certificate in favour of Vydianatha Pattar. Ext. B10 was executed on 23-11-1113 by the first defendant, Vydianatha Pattar and others in favour of the second defendant, for Rs. 30,000/-. The first defendant received Rs. 5,000/- and Vydianatha Pattar received Rs. 25,000/- Harihara Iyer the mortgagee under Ext. B27 parted with his rights in favour of the second defendant for Rs. 100/- under Ext. B28 dated 24-11-1113 the next day after the execution of Ext. B10. Ext. B10 was an assignment of the rights of Vydianatha Pattar and others under the prior mortgages, lease deed and the court purchases and also the rights of the plaintiff's family under the mortgage and court purchase to the second defendant. The court auction in execution of the decree in O. S. 64 of 1104 suffered from the infirmity in that the subsequent mortgagee under Ext. B27 was not impleaded. It was open to the mortgagee under Ext. B27 to have filed the suit on his mortgage against the first defendant and bring the equity of redemption of A schedule items to sale subject to the rights of the prior mortgagees. But in view of the court auction purchase by the plaintiff's family the mortgagee under Ext. B27 cannot assert his subordinate rights to sell the identical properties which have been sold away by the prior mortgagee, the first defendant. The first defendant had therefore the right to redeem the mortgage under Ext. B27. Otherwise the mortgagee under Ext. B27 had the right to file a suit on his mortgage impleading the first defendant and bring the A schedule items to sale. The amounts due to Vydianatha Pattar and Harihara Iyer on the date of Ext. B10 could be estimated easily at about Rs. 44,000/-. A schedule properties fetched only Rs. 30,000/- by the sale under Ext. B10. The contention raised on behalf of the appellant was that A schedule properties were sold for a low price under Ext. B10 and the sale is not for any family necessity or for benefit of the estate and the second defendant is not a purchaser who made bona fide enquiries regarding the existence of any necessity for the sale of the property. In view of these circumstances, it was pointed out that Ext. B10 is not binding on the plaintiff.