C S PARTHASARATHY Vs. C S SRINIVASAN

JUDGEMENT

(1.) THIS appeal filed in forma pauperis arises out of a suit for redemption instituted by the appellant, the fourth son of one Srinivasachari. The latter inherited considerable properties from his own father who bore the same name. The family was indebted even at the time of the appellant's grandfather, who, during his lifetime, had executed two mortgages Exs. B. 31 and B. 4 over the suit properties. On 23-5-1925, the appellant's father and his nephew executed a mortgage over the suit properties, Ex. A. 3, in favour of Vaitheeswara Aiyar and Govinda Aiyar to secure a sum of Rs. 27, 350. It is not disputed that the money raised under that mortgage went in for necessary purposes of the family. The mortgagors executed on 29-9-1919, Ex. B. 13, a sale of almost all their properties in favour of one balakrishna Mudaliar, directing the vendee to discharge the mortgage under Ex. A. 3; but the vendee failed to do so. The mortgagee under Ex. A. 3 instituted on 163-1927 a suit, O. S. No. 59 of 1927, for sale of the mortgaged properties. To that suit the appellant's three brothers, who were alone then in existence, were made parties. A preliminary decree was passed on 14-12-1927 for a sum of Rs. 73,854. A final decree followed on 22-10-1928. By way of interlude, we may now mention that the earlier mortgages Exs. B. 31 and B. 4 formed the subject-matter of the suit for sale in O. S. 140 of 1927 on the file of the lower court. Beyond obtaining a preliminary decree, the creditor appears to have done nothing in the matter and we are not therefore concerned with those mortgages in this litigation.

(2.) TO resume the facts relevant to the present case, the mortgagee decree-holder in O. S. 59 of 1927 brought up for sale and purchased the mortgaged properties for a sum of Rs. 59,200 leaving a portion of the decree still unsatisfied. The sale took place on 17-7-1929. The auction purchaser obtained delivery of possession.

(3.) THE appellant claiming that he was born on 20-9-1929, filed on 19-9-1950 the suit, out of which the present appeal arises, for redemption. He alleged that as the vendee under Ex. B. 13 had failed to pay the consideration for the purchase, the appellant's family (vendors) had a statutory charge for the unpaid purchase money on the properties sold and the members thereof would be in the position of puisne mortgagees. They would therefore be said to be entitled to redeem Ex. A. 3. The contention of the appellant further is that as he was afforded no opportunity to redeem the mortgage which should be deemed to subsist in the circumstance of this case, his present suit for redemption should succeed. It will be noticed that the appellant, even according to his own case, had not even been born till two months after the date of the Court sale. But it has been argued that as he, even before the date of sale, was in his mother's womb, he would be entitled to redeem the mortgage. The learned Subordinate Judge rejected this contention; he held also that the appellant's suit must fail on certain other grounds which are not now material to consider.