VEERAYYA PILLAI Vs. K RAMANATHA IYER

JUDGEMENT

(1.) THE defendant is the appellant. The suit was filed by the respondent for a declaration that the suit property is not liable to be proceeded against in enforcement of the decree in O. S. 682 of 1967 on the file of the District Munsif court, Mayuram. The suit property originally belonged to one Kanniah Naidu who died in 1947 leaving his wife Sulochana and a minor son Kalidoss. There was a dispute relating to the guardianship of the minor which was the subject-matter of O. P. 16 of 1948 on the file of the learned District Judge, East tanjore. In that proceedings, the mother Sulochana was appointed as guardian. It is not also in dispute that the order of appointment prohibited the guardian from selling, leasing or otherwise encumbering the property of the minor without the sanction of the court. But contrary to this prohibition, she sold the property under Ex. A. 1 dated 16-2-1957 in favour of the plaintiff. No sanction of the court was obtained prior to the sale. The defendant in this case had advanced moneys to the said Kalidoss. For the recovery of the moneys due, he filed O. S. 682 of 1976, on the file of the District Munsif Court, Mayuram. Pending the suit, he attached the property on 18-11-1967. In the meanwhile, it appears that the minor Kalidoss, who had by then attained the age of majority filed O. S. 83 of 1966 on the file of the Sub Court, Mayuram, challenging number of alienations made by his mother as guardian and for recovery of possession. The alienation in favour of the plaintiff under the sale deed Ex. A. 1 dated 16-2-1957, was one of the items that was questioned in this suit and the present plaintiff was the 14th defendant in that suit. Subsequent to the attachment, on 27-11-1967, it appears that the plaintiff herein and the said kalidoss settled their dispute between them and accordingly in O. S. 83 of 1966, Kalidoss exonerated the plaintiff herein and the present plaintiff was removed from the array of parties. Thereafter, the plaintiff filed the suit for declaration that the property is not liable to be attached and proceeded against in to be attached and proceeded against in enforcement of the decree in O. S. 692 of 1967.

(2.) BOTH the courts below held that Kalidoss had no interest at all in the property and Sulochana was the absolute owner of the entirety of the property and that therefore, the suit property was not liable to attachment and sale in execution of the decree in O. S. 682 of 1967 against the said Kalidoss.

(3.) THIS finding could not be supported and, in fact, the learned counsel for the respondent did not support this finding Ex. A-1, the sale deed in favour of the plaintiff itself showed that the suit property belonged to Kanniah Naidu, father of Kalidoss, and that on his death, his wife Sulochana and his son Kalidoss, become entitled to it. Certainly therefore, Kalidoss had one half interest in the property so conveyed under Ex. A. 1 dated 16-2-1967.