ANGU PILLAI Vs. M S M KASIVISWANATHAN CHETTIAR

JUDGEMENT

(1.) THESE two appeals arise out of two suits disposed of by a common judgment by the Subordinate Judge of Sivaganga. In both the suits (O. S. 54 of 1961 and O. S. 55 of 1961) the plaintiff was the same. The plaintiff Kasiviswanathan Chettiar is the son of one Samasundram Chettiar. Angu Pillai alias Kalyani Achi the sole defendant in O. S. 54 of 1961, had obtained a money decree in O. S. 1 of 1959 on the file of a Subordinate Judge, Sivaganga, against Subramania Chettiar, and attached certain properties in execution of that decree. The plaintiff intervened with a claim under Section 47 C. P. C. contending inter alia that the money of his mother Kuppachi alias Visalakshi had been deposited with the joint family, which was having money lending business in Malaya, Burma and Madurai, and that on the death of his mother, he as the sole heir, become entitled to the said amount, that the amount was calculated and settled at Rupees 40,000 that his father had executed an agreement on 28-10-1955 (Ex. A. 22) agreeing to mortgage the properties against which attachment was sought for and that, therefore, the decree-holder is O. S. 1 of 1959 should be directed to bring the property for sale subject to the said agreement.

(2.) VALLIMMAL Achi, the first defendant in O. S. 55 of 1961, who died during the pendency of the suit, is the mother of Angu Pillai alias Kalyani Achi, the sole defendant in O. S. 54 of 1961. She had obtained a decree in O. S. 21 of 1958 on against Somasundaram Chettiar, father of the plaintiff. In execution of that decree, she attached same properties and brought them for sale. The plaintiff intervened the aforesaid sum of Rupees 40,000 due to him, his father had created an equitable mortgage over the attached properties in the decree-holder should bring the properties to sale only subject to the equitable mortgage.

(3.) IN both the suits, the defences were that the alleged deposit of Sridhana amount was not true, that the alleged agreement dated 28-10-1955 to execute a mortgage in favour of the plaintiff was neither true nor valid and that likewise, the equitable mortgage was also neither true nor valid.