BALASUNDARA MUDALIAR Vs. MUTHUVENKATACHALA MUDALIAR DIED

JUDGEMENT

(1.) The plaintiff appeals against the dismissal of his suit O. S. No. 87 of 1947 by the Subordinate Judge of Cuddalore. This was a suit for partition and for specific (10.09.1953 - MA... Page 3 of 9 performance, as an alternative relief. The plaintiff and the second defendant are the sons of the first defendant. The first defendant, his brother Ratnavelu Mudaliar, and three others were the sons of one Arumugha Mudaliar. Defendants 3 to 6 are the daughters of Ratnavelu Mudaliar. The family was possessed of some landed properties and there was a partition in the family as between the brothers. The three other brothers separated leaving the first defendant and Ratnavelu Mudalair as joint, they being entitled in the family properties to a 2/5th share. On 15-2-1920 Ratnavelu Mudaliar being then the elder of the two brothers mortgaged the properties described in schedule B, part I of the plaint to the father of the 9th and 10th defendants under Ex. B.14 for Rs. 2500. Subsequent to it the first defendant instituted a partition suit in O. S. No. 2$ of 1921 in the Sub-Court, Cuddalore, against his brother Ratnavelu Mudaliar and a final decree for partition was passed in 1923. There is nothing known as to how the mortgage Ex. B.14 executed by the elder brother Ratnavelu Mudaliar was disposed of in that partition. It may now be presumed that the mortgage Ex. B.14 was not disputed in that partition suit.

(2.) On 31-12-1923 Ratnavelu Mudaliar and the first defendant, apparently after the partition final decree, jointly mortgaged the properties in schedule B, part I of the plaint to P. V. Nata-raja Mudaliar, a relation of theirs and an advocate and a permanent resident of Madras, under Ex. B.15. Along with those properties other items of properties described in schedule B, part II, were also the subject of that mortgage. On 13-2-1933 under Ex. B.16 Nataraja Mudaliar conveyed to the 9th defendant wet lands of the extent of Ac. 63-36 cents out of the properties in schedule B part I of the plaint, for a consideration of Rs. 6000. On 9-1-1939 the 9th defendant sold some of the items of these properties which he purchased under Ex. B.16 to the 11th defendant under Ex. B.17. The 11th defendant reconveyed some of the items of properties he purchased under Ex. B.17 to the 9th defendant under Ex. B.19 dated 24-5-1945 for Rs. 3000. In the meanwhile, the first defendant and Ratnavelu Mudaliar sold some Of the properties mortgaged to the mortgagee Nataraja Mudaliar by a sale deed Ex. B.13 dated 19-11-1923 for a sum of Rs. 13,800. On the same date there was a counterpart to the deed of sale Ex. A.3 executed by the mortgagee purchaser Nataraja Mudaliar in favour of Ratnavelu Mudaliar and the first defendant agreeing to reconvey the properties sold under Ex. B.I3 within a period of 16 years from that date. The present suit is for partition of the plaintiff's share in these properties. Subsequent to these transactions the members of the family sold portions of them to third parties, and there were also certain sales for nonpayment of the public dues and several items of properties were purchased in such auction sales by strangers. All the alienees interested in these properties have been made parties to this suit. There are no less than 43 defendants and no less than 47 issues framed in this case concerning the several alienations.

(3.) The plaintiff in a long plaint refers to the various alienations contending that (10.09.1953 - MA... Page 4 of 9 they are not for consideration, fraudulent and not binding on him and in effect asking for a cancellation of those transactions and recovery of his share therein. There is however an alternative relief for directing the purchasers who have derived title from Nataraja Mudaliar to execute a deed of conveyance on receipt of such sums of money as may be found due to them by the plaintiff and such other sharers who will be entitled to a share in those properties. The primary relief therefore that is asked for in the plaint is to declare in effect that the sale Ex. B.13 is not binding on the plaintiff and to set aside the several alienations made subsequently. The whole plaint proceeds as if it is a suit for setting aside the alienations made by a father or managing member of the Hindu family. The main relief asked for is partition. An incidental prayer for specific performance is introduced as an alternative relief.