A K PARVATHAMBAL Vs. ATTIMUTHU GOUNDER AND ORS

JUDGEMENT

(1.) The unsuccessful plaintiff in O.S. No. 109 of 1964 on the file of the Court of the Subordinate Judge, Coimbatore, is the appellant herein. In the said suit she Sued to recover from the first defendant personally and from defendants 2 and 3 from out of the family properties in their hands, a sum of Rs. 79,544 based on a contract of indemnity. According to the plaintiff, on 7th June, 1944, as per the sale deed Exhibit A-1 the first defendant, for himself and as guardian for his then minor brother Ramaswami Gounder, sold certain properties for Rs. 45,000 to the husband of the plaintiff benami in the name of one Gopalakrishnan, the fourth defendant herein. As per the terms of the said sale deed and the special undertaking therein, the vendor, the first defendant, has undertaken to be responsible for any loss that might be caused to the vendee (plaintiff's husband) or for any defect in the properties. In fact, the properties originally belonged to the plaintiff's husband and the first defendant's father had taken them from him under some arrangement and as a result of a panchayat it had been agreed that they should be conveyed back to the plaintiff's husband free of encumbrance. But, what happened was that the said Ramaswami, brother of the first defendant, on his attaining majority, filed a suit O.S. No. 178 of 1951 in sub-Court, Coimbatore against the first defendant, the plaintiff's husband and the fourth defendant, who were defendants 1, 3 and 2 respectively therein. Since the plaintiff's husband died pending suit, his widows, viz., the plaintiff herein and two others were impleaded as his legal representatives. The first defendant, instead of upholding the sale under Exhibit A-1 and supporting the plaintiff's husband, chose to remain ex parte. Likewise, the fourth defendant also remained ex parte. The suit ended in a compromise decree as per which Ramaswami was directed to be given 1|5 share in the suit properties or else the sixth defendant therein (plaintiff herein) should pay Rs. 62,500 to Ramaswami, the plaintiff therein, in full quit of all claims. The plaintiff, (6th defendant therein) promptly deposited on 16th April, 1959 itself the said sum of Rs. 62,500 into Court. Now, the plaintiff, herein has claimed that but for the compromise she would have insisted upon other claims in the previous suit and therefore the first defendant herein is bound to indemnify and reimburse the plaintiff for the payment which she was forced to make in that suit. She also claims that defendants 2 and 3, who are the sons of the first defendant, are bound by the contract or indemnity given by the first defendant even though they have created a fraudulent partition deed on 4th December, 1959.

(2.) According to the contentions of the first defendant, the plaintiff's husband had sold the suit properties as per the sale deed Exhibit B-1 dated 7th July, 1933 for Rs. 1,89,821-14-0 in favour of the first defendant's father Perumal Gounder, who himself was none other than the sister's husband of the plaintiff's husband. That sale deed was in fact a nominal one and possession remained with the plaintiff's husband. Perumal Gounder died in 1939, when this defendant was aged 15 and his younger brother Ramaswami 12 or 13. Even before the death of Perumal Gounder, Doraiswami Gounder, the plaintiff's husband, wanted to get documents from Perumal Gounder to establish his full ownership. Doraiswami Gounder was a powerful and influential man. In 1944, when the first defendant's marriage was being negotiated, Doraiswami Gounder threatened to forcibly stop the marriage unless the first defendant executed the documents wanted by the former. Under these circumstances, due to fraud, force, coercion and misrepresentation, the first defendant on 7th June, 1944 executed Exhibit A-1 for Rs, 45,000 and therefore the said sale deed is not valid and binding on him. Therefore, the plaintiff cannot enforce the conditions mentioned therein. Since Exhibit B-1 was nominal, Exhibit A-1 was also nominal. Since this defendant's father Perumal Gounder was helping Doraiswami Gounder financially since the latter was involved in criminal cases and was in financial difficulties, large sums were found due to the former (Perumal Gounder). Since Doraiswami Gounder did not discharge the said debts, this defendant suffered. His brother Ramaswami Gounder filed O.S. No. 178 of 1951. Since no relief was claimed against this defendant, he remained ex parte. That suit ended in a compromise under which the estate of Doraiswami Gounder was made liable to pay Rs. 62,500 being the plaintiff's share of the amount. This defendant stated that a like sum of Rs. 62,500 would also be due to him on the game date. The present suit has been started just as a counterblast to the said claim of this defendant. This defendant is not bound by the said terms of the compromise decree and is not bound to reimburse the plaintiff in this suit. The partition between this defendant and his sons is true and binding. The suit properties, according to this defendant, are not the joint family properties of Perumal Gounder, but his self-acquisitions. This defendant executed Exhibit A-1 not as a joint family manager but as guardian of his brother Ramaswami and therefore this defendant cannot be made liable for breach of any covenant of title. The suit is barred by limitation and the claim is also excessive.

(3.) Defendants 2 and 3 contended that they did not derive any benefit from the sale transactions and that they are not in any way liable for the suit claim. In other respects, they adopt the written statement filed by the first defendant.