GANAPATHI Vs. BALASUBRAMANIA

JUDGEMENT

(1.) These two revision petitions can be disposed of by a common order. Both of them arise out of proceedings in execution of a mortgage decree passed by this Court in App. No. 15 of 1973 decided on 12th October, 1977.

(2.) One Ayyakannu Gounder who died in March-April, 1959, had two wives. His second wife was Thaiyanayaki Ammal. Through his first wife he had three daughters and one son, viz., Lokambal Ammal, Visalakshi Ammal, Kokilambal Ammal and Thangaraj, who predeceased his father. Thangaraj's son Thanikachalam died on 2-2-1976 leaving behind his widow Mallika and three minor sons. Kokilambal Ammal has two sons Ganapathi and Masilamani. Visalakshi Ammal has a son, Radhakrishnan. On 9-1-1961 Thaiyanayaki Ammal executed a mortgage on behalf of herself and as guardian of Thanikachalam for a sum of Rs. 30,000 in favour of Balasubramania Gounder. O.S. 50 of 1969 came to be filed by the plaintiff, Balasubramania Gounder in the Court of the Subordinate Judge of Chidambaram for recovery of Rs. 44,903-60. To this suit Thaiyanayaki Ammal and Thanikachalam were defendants 1 and 2 respectively, Rukmani Ammal, Thanikachalam's mother was the 3rd defendant. Ganapathi, Masilamani and Radhakrishnan the grandsons of Ayyakannu Gounder were defendants 4, 5 and 6 respectively. Ayyakannu Gounder had executed a will on 29-11-1958 by which he bequeathed his properties to all the defendants except the 3rd defendant. Under the will, the first defendant had been appointed executrix, to carry out the terms of the will. She was directed to take possession of all the properties and perform charities mentioned in the will and also be in management of the properties bequeathed to the minor grandchildren and to give them possession on their attaining majority. Thaiyanayaki Ammal was also appointed guardian of the minor grandchildren, defendants 2 and 4 to 6.

(3.) Ayyakannu Gounder was indebted to one Muthukrishna Gounder on the basis of a mortgage dated 20-3-1956, for a sum of Rs. 25,000. After the death of Ayyakannu Gounder, Muthukrishna Gounder filed a suit O.S. 90 of 1959 on the file of the Sub Court Cuddalore, and obtained a decree on 4-1-1960 for Rs. 25,889-37. Since in execution of that decree the properties left behind by Ayyakannu Gounder were to be sold, Thayyanayaki Ammal borrowed a sum of Rs. 30,000 from the plaintiff in order to discharge the decretal debt of Muthukrishna Gounder. According to the plaintiff, if the plaintiff had not advanced the loan to Thayyanyayaki Ammal, the properties of Ayyakannu Gounder would have been completely lost to the estate and there was therefore compelling necessity for Thayyanayaki Ammal to raise the loan of Rs. 30,000. Thus, according to the plaintiff, Thayyanayaki Ammal was entitled to execute the mortgage in her capacity as executrix and as representing the estate of Ayyakannu Gounder, and all his heirs and legatees. Therefore, the entire estate would be liable for the amount due on the mortgage in favour of the plaintiff.