JAGADESAN Vs. SARASWATHI AMMAL

JUDGEMENT

(1.) THIS reference raises a question regarding the binding nature of an execution sale under a mortgage decree over the interest of the sons in the mortgaged property; the debt secured not being personally enforceable against the father and not being of avyavaharika character. The question as framed and placed before us would appear to cover a mortgage decree on the basis of an avyavaharika debt as well. We have, therefore, though it necessary to recast the question which will be as follows :

(2.) BEFORE giving our reasons for the conclusion stated above, it is necessary to state a few facts which give rise to this reference. Shamugham, the second respondent to the appeal and his three sons, namely, the two appellants and the third respondent are members of a joint Hindu family. During the year, 1936 shanmugham created a mortgage over the suit property to secure a sum of Rs. 350. It is admitted that the loan was not incurred for the discharge of any antecedent debt incurred by Shanmugham or for any benefit or necessity of the family; but at the same time it was not for any illegal or immoral purpose. In the year 1949 by which time, the personal remedy against the mortgagor had become barred, the mortgage instituted a suit for the sale of the property covered by the security. The sons were not made parties to the suit. The suit ended in a decree in execution of which the predecessor-in-title of the first respondent purchased the property, the sale certificate issued being wide enough to cover the sons' interest in the property as well. Alleging that the court auction sale would not bind their interest in the property and complaining that the purchase was improperly interfering with their possession the appellants, the two minor sons of shanmugham instituted a suit, out of which this second appeal arises, for a declaration of their title to the property and for recovery of possession of the same.

(3.) THE learned District Munsif held that the court sale would not be effective to convey the interest of the appellants and decreed the suit. On appeal the learned subordinate Judge reversed that judgment holding that the property was the separate property of Shammugham and that even otherwise the sale in execution would bind the interests of the sons by reason of the pious obligation of the latter to discharge their father's debts. The appellants contest the propriety of that conclusion in this second appeal.