A. PATTAMMAL ALIAS PACHAIYAMMAL Vs. NAGARAJAN AND ORS.

JUDGEMENT

(1.) THE first Defend ant in O.S. No. 80 of 1968 on the file of the Subordinate Judge of Vellore is the appellant.

(2.) THE second defendant and the four minor plaintiffs constituted a Hindu undivided family. The second defendant is the son of one Thandavaraya Mudaliar who besides his only son, namely, the second defendant, had two daughters. He died in 1958 leaving behind him Schedule A properties which are the only properties available in the family. After Thandavaraya's death, under the Hindu Succession Act, the two daughters also had a right in the properties so left by their father. It appears that the daughters wanted their share in their father's property. Though for the purpose of enumeration, there are two items in the A Schedule, it is conceded that the second item in the A -Schedule is neither valuable nor useful property. In fact, the parties went to trial as if the one property which was available for partition and which was Valuable indeed was item 1 of the A Schedule. When the daughters of Thandavaraya demanded from the second defendant their legitimate share in accordance with the Hindu Succession Act, the second defendant had no option except to raise a loan on the only available valuable property of the family, namely item 1 of Schedule A with which we are concerned in the suit. Consequently, after obtaining a release from the sisters under Exhibit B -14 dated 4th September 1960, the second defendant as father -manager of the joint family consisting of himself and his four minor sons who are the plaintiffs in the action mortgaged the said property in favour of the husband of the first defendant under Exhibit B -15 and borrowed a sum of Rs. 3,250. It is common ground that this amount was intended to be paid over to the two daughters of Thandavaraya in full quit of their claims against the family property. After effecting a mortgage under Exhibit B -15 on 5th September, 1960, it appears that the second defendant was paying interest regularly to the mortgagee. But a few months thereafter, the second defendant thought it wise to sell the property which was a shop whose dimensions were 13' Ã - 27' so that the mortgage which is in the nature of an antecedent debt could be paid off, interest avoided and the balance of consideration utilised for the purpose of purchasing a house and for starting a business. With this object in view, the second defendant sought for a purchaser and finding that the mortgagee's wife, namely, the first defendant was interested in purchasing the shop, which is obviously a small one, negotiated and agreed to sell the same for a sum and consideration of Rs. 10,000. Under Exhibit B -1 dated 24th February, 1961 the suit property was sold and the first defendant as purchaser reserved with, herself the necessary funds to pay off the daughters of Thandavaraya and paid the balance of Rs. 6,000 in cash before the Sub -Registrar of Assurances. It is not in dispute that the recitals in Exhibit B -15 were : (a) Rs. 3,250 was reserved with the first defendant for discharge of the mortgage debt under Exhibit B -15; and (b) a sum of Rs. 750 was paid to the second defendant by the first defendant for family expenses and the balance sum of Rs. 6,000 was paid to the second defendant by the first defendant in the presence of the Sub -Registrar for purchasing a house and for starting business.

(3.) THE first defendant's case is that she is a bona fide purchaser for value and she discharged an antecedent debt under Exhibit B -15 and promptly assured herself that the balance of the sale consideration would be utilised for the benefit of the family, inasmuch as the father represented that he Was selling the property not only to discharge the subsisting encumbrances on the family property but also to start a new business and purchase other properties as well. In this sense, the defence is that the sale was after due enquiry and that she was a bona fide purchaser for value. The specific allegation is that the family is a trading family, in that the great -grand father was selling bread, bun and biscuits and the father continued the same business and thereafter dealt with in piece goods and, therefore, it could normally be expected that the kulachara of the family was business and, therefore, she believed the representation made by the second defendant that he was selling the property in order to improve the condition of the family and to enable him to do business. On this ground, the first defendant resists the suit for partition and separate possession filed by the plaintiff's as regards their alleged 4/5th share in the first item of A Schedule property as well. Of course, there is no clear case regarding the second item of A Schedule properties. But there appears to be no controversy about its existence or its availability for division. We are not, therefore, discussing about that item of the property and to that extent, therefore, the preliminary decree passed by the Court, below has to be upheld and is upheld.