JAGANNATH Vs. PERUMAL NAIDU

JUDGEMENT

(1.) The plaintiff who is a purchaser in court-auction of certain rights in zamin and private properties situated in Chingleput district, and alleged to belong to some members of a joint Hindu family, la the appellant in this appeal. His suit for ascertainment of the share of the judgment-debtors and for recovery of such share by separate allotment has been decreed by the lower court only to the extent of the 1/4th share belonging to the first and second defendants and aggrieved by the dismissal of the suit with regard to the rest, he has preferred this appeal.

(2.) Defendants 1, 3, 6 and the father of the 7th defendant were members of a joint Hindu family governed by the Mitakshara law. The second defendant is the son of the first defendant. Defendants 4 and 5 are the sons of the third defendant. In execution of the decree in O. S. No. 132 of 1930 on the file of the District Munsif's Court of Chingleput, the share of some of the defendants had been brought to sale. The question is what exactly was the share that has been sold and purchased by the third party purchaser, who is the plaintiff.

(3.) The family had a half share in certain properties obtained under a razinama decree in O. S. No. 43 of 1925 in the same District Munsif's Court of Chingleput dated 16-11-1933. This half share belonged jointly to the four brothers, defendants 1, 3, 6 and the father of the 7th defendant and as such each one of the brothers and their progeny would be entitled to a one-fourth of this half share in the zamin and private lands. After obtaining a decree against the first defendant for a certain sum of money as well as against defendants 3 and 6 who stood surety for the production of the first defendant in the suit in the event of a decree being passed for the payment of the decree amount, E. P. No. 1289 of 1933 was filed by the decree-holder Chunilal Sowcar who is alleged to be the master of the purchaser plaintiff against defendants 1 to 3 and 6 for the sale of their three- fourth share in the half share obtained by the joint family as a result of O. S. No. 45 of 1925. Attachment of the shares of the defendants was duly made after notice to them. Thereafter defendants 3 and 6 put in an application stating that their shares cannot be sold until and unless the share of the first defendant and his son in the Joint family was sold and that only if the amount so realised, was found not sufficient should then share be proceeded against. On 14-8-1934 the Court ordered that the decree-holder should proceed against the one-fourth share of the first and second defendants and if the amount realised by that sale was not sufficient to liquidate the entire decree amount, then only the share of defendants 3 and 6 should be proceeded against. After this order was passed, the second defendant filed a claim petition stating that his one-eighth share cannot be proceeded against for reasons which it is unnecessary to set out at this stage. The Court upheld the objection on 28-8-1935 and held that only the first defendant's one-eighth share can be sold. Thereafter the sixth defendant filed O. S. No. 55 of 1935 for a declaration that the order on the claim petition was wrong and that the decree-holder was entitled to proceed against the one-eighth share of the second defendant as well. This is rather a curious proceeding which inverts the ordinary state of things because the claim was by the second defendant and the aggrieved party was the plaintiff. But the reason why the sixth defendant filed the suit was that if only a one-eighth share in the properties was sold, then probably a part of the decree amount would remain unpaid in which case the shares of defendants 3 and 6 would be sold. Now this claim suit was decreed on 10-7-1937 and para. 5 of the judgment in that suit was to the following effect: