SRINIVASA NAICKER Vs. PONNAMMAL AND ANOTHER

JUDGEMENT

(1.) These two second appeals arise out of two suits filed by the plaintiff for recovery of possession of the properties comprised therein. The points which arise in both the second appeals are the same and may be briefly stated. Under Ex. A -l dated 12th November, 1953, a partition was effected by a registered document, under which, amongst other things, the properties set out in the D Schedule were allotted to one Pandurangan and Alagarsami. The said partition was effected between one Venkitamani Naicker (referred to herein as he grandfather), his son Parasurama Naicker, and the letter's sons through his two wives. Soodai Ammal), the second wife of Parasurama Naicker and the mother of Pandurangan and Alagarsami, represented the latter as their guardian at the partition. At that patition, the D Schedule properties were allotted to the two grandsons with a debt of Rs. 3,100 to be discharged from and out of their share. From the birth register extracts filed in this case, Ex. A -19 representing Pandurangan and Ex. A -20 representing Alagarsami, it is found that Pandurangan attained majority on 4th November 1952 while Alagarsami became a major on 17th October, 1955. Even though Pandurangan had attained majority even in 1952, the partition deed, proceeded on the footing that he too was a minor. Ten days after the partition, the mother, acting as the guardian of her two minor sons, executed the document Ex. B -l dated 22nd November, 1953, under which it was provided that the debts allotted to the share of the minors would be discharged within ten months from that date, and in default thereof, the grandfather himself may sell the grandsons' properties to other creditors and discharge the debts without reference to her or her sons. The facts of the case reveal that this document was not acted upon or given effect to.

(2.) Under Ex. B -5 dated 14th June, 1954, Soodai Ammal, the mother, appears to have sold some properties which fell to the share of her sons at the partition for a sum of Rs. 800 and discharged certain debts. Under EX. B -3, dated 19th June, 1958, the grandfather Venkitasami Naicker appears to have sold the suit properties to the defendant in O.S. No. 124 of 1959 for a sum of Rs. 1500. On the same day he had also executed another sale deed under Ex. B -4 dated 19th June 1958 in favour of the defendant in O.S. No. 136 of 1959 (she being the wife of the defendant in O.S. No. 124 of 1959) for a sum of Rs. 1500. The recitals in the sale deeds show that out of the sum of Rs. 3000 stipulated under both the sale deeds, a sum of Rs. 2025 -75 nP., was to be utilised for the discharge of debts and the balance to be paid by cash. Shortly thereafter, as soon as Pandurangan and Alagarsami came to know about the sale by the grandfather, they raised their objections under Ex. A -18 dated 23rd June 1958, and they also subsequently sold the property to the plaintiff for a sum of Rs. 3000 under Ex. A -4 dated 4th July, 4959.

(3.) The question is whether the plaintiff, who has purchased the properties from Pandurangan and Alagarsami, is entitled to the possession of the properties as against the defendants who claim title under the sale deeds executed by the grandfather. The trial Court decreed the plaintiff's claim, but at the same time imposed a condition that as a portion of the debts binding upon the plaintiff's vendor had been discharged, the plaintiff is bound to pay to the defendant a sum of Rs. 525 -75 nP., in O.S. No. 124 of 1959 and a sum of Rs. 1500 to the defendant in O.S. No. 136 of 1959. The trial Court also provided that the plaintiff will be entitled to recover possession only after the payment of the aforesaid two sums. On appeal by the defendant, however, the learned Subordinate Judge took a different view and dismissed the plaintiff's suit. Hence the second appeal by the plaintiff.