K M RAGHOTHAMAN Vs. M P KANNAPPAN

JUDGEMENT

(1.) The plaintiffs in O. S. No. 405 of 1974, District Munsif's Court, Ranipet, are the appellants in this second appeal, which has been entertained on the following question of law-

(2.) The first respondent in the course of his written statement disputed the partition between the second respondent and his minor sons and the drawing of lists and allotment of properties thereunder, but maintained that the family continued to remain joint, of which the second respondent was the manager. The debt incurred by the second respondent was for family necessity and benefit, according to the first respondent and that such a debt was binding not only upon the second respondent, but also his sons, the first appellant and Balaji. According to the first respondent, the decree obtained in 0. S. 318 of 1971, District Munsif's Court, Ranipet, on the footing of such a debt was binding on the second respondent, first appellant and Balaji and their undivided interest in the family properties and also on the second appellant and therefore, no exception could be taken to the court sale. After referring to the court sale and the purchase therein of the suit property by the first respondent, the first respondent proceeded to state that he was in possession and enjoyment of the property pursuant to the Court auction sale in his favour and therefore, no relief could be granted in favour of the appellants.

(3.) Before the learned District Munsif, Ranipet, on behalf of the appellants, Exts. A.-I and A.-2 were marked and PWs. 1 to 3 were examined, while on behalf of the first respondent Ext. B. 1 to B. 3 were filed and he was also examined as DW1. On a consideration of the oral as well as the documentary evidence, the learned District Munsif found that the division in 1962 and the allotment of properties to the second respondent and his sons, viz., the first appellant and Balaji was not satisfactorily established and that the family continued to remain undivided. The debt incurred by the second respondent, which later on ripened into a decree in O. S. 318 of 1971, District Munsif's Court, Ranipet, was found to have been incurred by the second respondent for purposes of family necessity and so binding upon the first appellant and Balaji as well. It was further found that the execution proceedings in O. S. 318 of 1971 would be binding upon the appellants and that the court auction sale could not be in any manner impugned by them. On these conclusions, the suit was dismissed. Aggrieved by this, the appellants preferred an appeal in A. S. 192 of 1976 Sub-Court, Vellore, The learned Subordinate Judge, an a reconsideration of the evidence, found that the division and the allotment of properties to the respective parties at such a division in 1962 were not proved and that the debt incurred by the second respondent was only for family benefit or necessity and it was not open to the appellants to question the decree or debt. It was also found by the learned Subordinate Judge that in so far as the first appellant was concerned, he had not instituted a suit within a period of one year after the rejection of his claim under 0. 21, R. 63, C. P.C. and that, therefore, he could not agitate his rights in relation to the property in this suit. Dealing with the contention that by reason of the operation of S. 6 of the Hindu Succession Act, 1956, the second appellant succeeded to the share of Balaji absolutely and therefore, her one-third share cannot be affected by the court sale, the learned Subordinate Judge held that the debt having been incurred by the second respondent long prior to the death of Balaji the second respondent was competent to bind even the interest of Balaji. So long as the debt was incurred for a lawful and binding purpose. In this view, the judgment and decree of the trial court were confirmed and the appeal was dismissed.