SARANGAPANI Vs. K V PARTHIBAN

JUDGEMENT

(1.) The second appeal has been filed by the 7th defendant in the suit which was one for partition of plaints A and B Schedule items into 16 shares and for allotment of five shares to the plaintiff.

(2.) The short facts are these : One Veararaghava Gounder, the father of the plaintiff, second defendant and third defendant, and the husband of the first defendant was the head of the joint family consisting of himself and his sons. Veeraraghava Gounder has four sons. The eldest son by name Ramabiran who was examined as P.W. 3 in the suit had relinquished his interest in the family properties. The second defendant was the second son. The plaintiff and third defendant are younger to him. Veeraraghava Gounder died sometime in 1961. The second defendant was admittedly managing the properties after the father's death. The case set out in the plaint is that the second defendant was a drunkard and he was leading a wayward life with concubines. According to the plaint, the debts incurred by the second defendant are not binding on the plaintiff or the other members of the family. It is also case of the plaintiff that decrees passed against the second defendant and further proceedings taken in execution of such decrees will not bind the plaintiff and the other members of the family.

(3.) The suit was contested mainly by the alienees and the court-auction purchasers. In this second appeal, I am concerned only with the sixth defendant and the 7th defendant. The sixth defendant was a usufructuary mortgagee under Ex.B-10 dt. 14-10-1963. The mortgage was executed by defendants 1 and 2. As per the recitals of the mortgage deed, the debt was for family purposes. The sixth defendant also lent money under promissory note to the second defendant and filed Small Cause Suit No. 759 of 1968, on the file of the District Munsiff's Court, Arni. The suit was decreed, and in execution of the decree, Items 1 and 2 of the B Schedule property were brought to sale. They were purchased by the sixth defendant himself and the sale certificate is marked as Ex. B11 dated 30-1-1971. By a sale deed dated 10-12-1973 (Ex. B13), the sixth defendant sold items 1 and 2 of the B Schedule property to the appellant/ 7th defendant. On the footing of the said purchase, the 7th defendant contested the suit. According to the 7th defendant, the mortgage in favour of the sixth defendant as well as the Court auction sale are binding on the plaintiff and the other members of the family of the plaintiff and they will not be entitled to claim any right in items 1 and 2 of the B Schedule property.