SHERIJA BI Vs. VEDANAYAKAM PILLAI

JUDGEMENT

(1.) THE third defendant is the appellant. The first respondent -plaintiff, the son of the first defendant and one Ramaswami, filed the suit for cancellation of a mortgage decree obtained by the second defendant against himself and his mother in O.S. No. 195 of 1951 on the file of the Sub -Court, Salem, declaration of his title to the suit properties which are 78 acres of lands and an injunction restraining the 4th defendant (3rd respondent herein) from interfering with his possession of the suit properties. According to the first respondent, his father Ramaswami left 40 acres of ancestral lands and they were sold by the second respondent and with the sale proceeds she purchased the suit lands from the second defendant (whose legal representatives are respondents 4 to 11 herein) under Ex. B -4 in 1942 for Rs. 8,750, in the names of herself and the first respondent and executed a mortgage under Ex. B -1 for Rs. 4,000 in favour of the second defendant and it is not binding on him. The further case of the first respondent was that the second defendant filed O.S. No. 195 of 1951 against him as though he was a minor represented by his mother as guardian though, in fact, he was a major and his interests were adverse to those of his mother and he was not properly represented and therefore, the decree passed in that suit was not binding on him. The properties were brought to sale in E.P. 136 of 1958, in execution of the decree passed in O.S. 195 of 1951 and the appellant has purchased the same for Rs. 6,010. The first respondent's case was that the execution proceedings and sale were not valid and binding on him on ground that the decree is void and the properties were really worth a lakh of rupees, but were sold for Rs. 6,010, and he came to know of the decree and the execution proceedings only ten days before the institution of the present suit.

(2.) DEFENDANTS 2 to 4 alone contested the suit. Their case was that the respondent was congenitally deaf and dumb and was unable to manage his own affairs and that he must be represented by the next friend in the suit and that the present suit filed by the first respondent without a next friend is not maintainable. They further contended that the first respondent is not the owner of the suit properties and that, if at all, he would be entitled only to a half share in the properties on the ground that the sale deed had been obtained in the names of himself and the second respondent.

(3.) IT is not possible to uphold the decree of the learned District Judge for injunction, having regard to his own finding that even the second respondent had title. The first respondent was entitled only to his half share in the suit properties and the decree in O.S. 195 of 1951 and the further execution proceedings are void and not binding on him to the extent of only his share and the appellant who is the purchaser in the execution sale would then be a co -owner against whom there cannot be a decree for injunction. The appellant had become entitled to the second respondent's half share by the court sale. The right of the first respondent would only be to sue for partition and separate possession of his half share in the properties which are not joint family properties.