LOGANATHAN GUARDIAN A Vs. PONNUSWAMI NAICKER

JUDGEMENT

(1.) THIS appeal arises from the judgment and decree in O. S. No. 238 of 1958 on the file of the First Additional Subordinate Judge, Coimbatore. The appellants herein are plaintiffs 1 and 2. The plaintiffs filed this suit in forma pauperis for partition of the suit properties and for separate possession in the joint family property and to set aside the decree in O. S. No. 392 of 1955 on the file of the Sub court, Coimbatore in favour of defendants 3 to 5, and to declare them not binding on the plaintiffs and also for maintenance for plaintiffs 3 and 4 at the rate of Rs. 30 per month.

(2.) PLAINTIFFS 1 and 2 are the son and daughter of the second defendant. The third plaintiff is the wife of the second defendant while the fourth plaintiff is the wife of the first defendant. The fifth plaintiff is the daughter of the first defendant. All of them are residing in Coimbatore. The plaintiffs and the first and second defendants form members of a joint Hindu family. Defendants 1 and 2 are the sister's sons of the deceased Kangaswami Naicker, the father of defendants 3, 4 and 5. After the death of Rangaswami Naicker, in or about 1946, defendants 1 and 2 according to allegations made in the plaint, entered into possession of the properties unlawfully and misappropriated the income therefrom. When one of the defendants 3 to 5 became a major, he called upon defendants 1 and 2 to render an account of the income of the joint family property, and on their failure to do so, they filed a criminal complaint against them (defendants I and 2) alleging unlawful entry and possession of the suit property, misappropriation of the income, threat to kill their mother and attempt to marry the sister by force. In the meantime, there was also a panchayat wherein it was decided that the defendants 1 and 2 should execute a promissory note for a sum of Rs. 20,000/and also give security of immovable property for the due repayment of the sum. Subsequently, the defendants 3 to 5 filed a suit O. S. No. 392 of 1955, and obtained a decree for a sum of Rs. 16,000/ -. As the defendants 1 and 2 had been adjudged insolvents, the property was brought to sale. The plaintiffs filed the present suit for partition, separate possession, maintenance and also for declaring that the decrees obtained in favour of defendants 3 to 9 were not binding on them, on the ground that the debt contracted through, the promissory note was an avyavaharika debt and' hence not binding on the plaintiffs, and that the execution of the promissory note itself was against public policy, namely, that it came into existence, while criminal proceedings were pending against their fathers, defendants 1 and 2.

(3.) DEFENDANTS 1 and 2 have remained ex parte. The fourth defendant, in his written statement, which was adopted by the defendants 3 and 5, has stated that when his father died, defendants 3, 4 and 5 were minors, that he left considerable properties both moveable and immovable and that the second defendant taking advantage of the close relationship with their father entered into possession of their property and appropriated the entire income during the management. The fourth defendant further stated that when they became majors. they called upon the first and second defendants to render account. Subsequently there was a panchayat and the defendants agreed to abide by the decision arrived at. A muchilika was executed by them. It was decided that defendants 1 and 2 should pay Rs. 20,000/-, that as part payment they should pay within five days Rs. 5,000/- and execute a promissory note for Rs. 15,000/ and also give security for due payment of the balance of Rs. 15,000/ -. The defendants 1 and' a did not abide by the terms of the Panchayat. On the other hand, they were evading payment of the amount decided by the panchayat. Subsequently defendants 3, 4 and 5 filed a criminal' complaint against defendants 1 and 2 and alleged that they ill-treated their mother and also attempted to marry their sister in order to avoid the liability. They stated that this promissory note had' nothing to do with the criminal prosecution and' that it was an independent transaction. It was executed by them and they were responsible and liable for the amounts appropriated by their father during the management of the estate. When the suit was filed the defendants 1 and 2 did not contest the suit and submitted to the decree, and subsequently in order to defeat the fruits of their decree, they got themselves adjudged as insolvents and when the Official Receiver attempted to bring the property to sale, the first and second defendants set up the present plaintiffs to file a suit for partition of the joint family property and for cancellation of the decrees obtained against them. On these pleadings, the parties went to trial. The important question that was considered by the learned Subordinate Judge was 'whether the debt under the promissory note was binding on the plaintiffs and whether the suit promissory note executed by their father was not opposed to public policy. The learned Judge found that the promissory note was binding on the plaintiffs and that the suit O. S. 392 of 1955 was not collusive and fraudulent and that the decree was binding on the plaintiffs. It is against this finding that the present appeal is filed by plaintiffs 1 and 2.