P B RAMJEE Vs. P B LAKSHMANASWAMY NAIDU

JUDGEMENT

(1.) THE plaintiff who has failed in the trial court is the appellant herein. He is the son of one Lakshmanaswami Naidu who is the 1st defendant in the suit. THE 2nd defendant is his brother. THE 3rd defendant is the mortgagee under a document dated 9. 6. 1969 executed by the 1st defendant, 2nd defendant and the plaintiff represented by his father and guardian, the 1st defendant. THE 4th defendant is the auctioneer. Defendants 5 to 11 are the purchasers in the auction held by the 4th defendant under section 69 of the transfer of Property Act initiated by the 3rd defendant, the mortgagee.

(2.) THE case of the plaintiff as set out in the plaintiffs in short as follows:- THE plaintiff and defendants-1 and 2 were members of a joint family which had several ancestral properties. THE plaintiff is entitled to 1/3rd share therein. Certain alienations were made by the 1st defendant which were not for the purpose of the family or for the benefit of the family. THEy were effected for illegal purposes. THE 1st defendant is a spend thrift and he utilised the funds for discharging his avyavaharika debts and for that purpose, he effected alienations. On 28. 1. 1973, the 3rd and 4th defendants brought the properties for sale in exercise of the powers of the 3rd defendant under the mortgage. Defendants 5 to 11 purchased the properties. THE recitals in the deed of mortgage are sham and untrue and they have been made with a view to give a colour to the transaction and to hide the real purpose. THE properties are pucca constructions requiring no repairs at all. THE plaintiff feels that the amount realised from the mortgage was utilised actually by the 1st defendant for his illegal and immoral purpose. THE mortgages did not make any enquiry much less any bona fide enquiry before lending money to the 1st defendant who was a well known spend thrift and a race-GU. No inspection of property was made. Hence the mortgage is not binding on the plaintiff; nor the sale effected on 28. 1. 1973 is binding on the plaintiff. Hence the plaintiff has prayed for a decree for partition declaring his 1/3rd right in the joint family properties and for division by metes and bounds.

(3.) IT is the contention of learned counsel for the appellant that there is no evidence whatever to prove any enquiry on the part of the mortgagee, the third defendant, as to whether the money borrowed by the first defendant was utilised by the first defendant for family purposes. According to learned counsel the evidence does not make out that the mortgage is for the discharge of antecedent debts and on the other hand, it can be seen from the evidence that it is not for the benefit of the family or for family purposes. IT is therefore contended that unless the mortgage discharges the burden of proving either that the transaction is for the family benefit or that he made bonafide enquiry as regards the utilisation of the funds, the Court ought to have held that the transaction is not binding on the plaintiff and granted a decree in his favour as prayed for by him. Learned counsel also referred to certain decisions in his favour in order to contend that the trial court is in error in holding against the maintainability of the suit on the ground that there is no prayer for setting aside the transaction.