SIVASHANMUKHAM AND ANR Vs. ONGAYAMMAL AND ORS

JUDGEMENT

(1.) This Pauper Appeal is filed by the plaintiffs Sivashanmugam and Sakthivel (minor by next friend Sivashanmugam). The second appellant was declared as major as per order dated (19.2.1974 in C.M.P. No. 13460 of 1973). The respondents in this appeal are the first defendant Ongayamrnal, the second defendant Thangarajan, the fourth defendant A.M. Venkatachala Mudaliar, the 5th defendant A. Sengoda Mudaliar, the 6th defendant A. Loganathan, the 8th defendant M.P. Perianna Mudaliar, the 9th defendant Appavu Mudaliar, the 10th defendant President, House Mortgage Bank, Erode, 11th defendant Kandayammal, 12th defendant Murugesan, 13th defendant Singaravelu, 14th defendant Saraswathi, 15th defendant Savithri, 16th defendant Radhamani, 17th defendant S. Palaniswamy Chettiar, 18th defendant A. Sivashanmugham, 19th defendant Indrani, 20th defendant Kanaka and 21st defendant Sivasalthammal. The suit was filed by the plaintiffs Sivashanmugam and Sakthivel before the lower Court in: for ma pauperis to declare that the decree mentioned in the B Schedule to the plaint is not bidning on the plaintiffs and for dividing the suit property into four shares and put the plaintiffs in possession of two such shares.

(2.) The case of the plaintifs Sivashanmugam and Sakthivel in brief is as follows:- The plaintiffs are brothers and the second defendant is their step-brother. The plaintiffs and the second defendant are sons of N. Chinnappa Mudaliar, the partner of Venkatesa Textiles, who died during the pendency of the suit. That is in or abour 1955 or in or about 1957. The first defendant Ongaliammal is the wife of Chinnappa Mudaliar. The suit property is the ancestral property of the plaintiffs. Chinnappa Mudaliar had ancestral landed properties, and the Kulachara of the joint family is on agriculture. After the death of the grand-father of the plaintiffs, Chinnappa Mudaliar started yarn business without any experience and incurred debts. He was forced to sell the joint family properties. Later also, he entered into several transactions in a reckless way. He nominally executed a sale deed in respect of the suit property in favour of his close relation Mottayappa Mudaliar and after some time he got back the suit property once again. He also fell into the bad company and was keeping one Pavayee as his concubine and got addicted to drinks. He had incurred debts for his illegal and immoral purposes. The defendants 3 to 9 are close friends of Chinnappa Mudaliar. They instigated Chinnappa Mudaliar to file I.P. No. 7 of 1955 on the file of Sub Court, Coimbatore, later transferred and numbered as I.P. No. 1 of 1956 on the file of the Sub Court, Erode to escape from the clutches of the creditors. For the purpose, fictitious debts were created in favour of the defendants 3 to 9 to escape from the liabilities of other creditors. Even though the debts as if due to the defendants 3 to 9 have been set out in the Insolvency Petition, those debts were not true, but fictitious and created for the abovesaid purpose. Chinnappa Mudaliar also entered false entries in his accounts to support the claim of the defendants 3 to 9. The debts are not binding on the plaintiffs. The entire claims of the defendants 3 to 9 are time-barred and fictitious even at the time of filing I.P. No. 7 of 1955 and the entries were made as if claims were still pending. The plaintiffs understand that the Insolvency Petition was dismissed. Thereafter, several years, the defendants 3 to 11 took advantage of the recitals in the Insolvency Petition, filed suits O.S. 971 of 1952, O.S. 722 of 1958, O.S. 724 of 1958, O.S. 733 of 1958, O.S. 734 of 1958, O.S. 758 of 1958, S.C. 1078 of 1958, O.S. 624 of 1958 on the file of the District Munsif's Court, Erode, O.S. 19 of 1958 on the file of the Sub Court, Erode and C.E.P. No. 32/57-58 on the file of the Co-operative Sub Registrar, Erode. All the above suits on the file of the District Munsif's Court, Erode, were decreed. The said decrees are not binding on the plaintiffs since these decrees were passed on the strength of time-barred and fictitious debts, which in any event will not bind the plaintiffs or their shares of the properties. In the abovesaid O.S. No. 971 of 1952, on the file of the District Munsif's Court, Erode, Chinnappa Mudaliar, the father of the plaintiffs did not contest the suit property and failed to raise the plea that the suits are barred by time. The second defendant was not interested in safeguarding his interests and was colluding with the defendants 3 to 9. The entire liability could have been warded off if the defendants 1 and 2 had been vigilant in the conduct of the proceedingsw. In O.S. No. 19 of 1958 on the file of Sub Court, Erode, filed by the third defendant, the plaintiffs were represented by guardian Thai Muthammal. She contested that suit on the ground of limitation and got the suit dismissed. The decree in O.S. No. 19 of 1958 was taken in appeal and the suit was remanded for fresh disposal after giving an opportunity to the third defendant to amend the plaint and again the suit was dismissed upholding the contention of the defendants in that suit that the suit was barred by limitation on the ground that the presentation of the Insolvency Petition and the appointment of Receiver will not suspend the operation of the statute of limitation.' On the very same principle the other suits on the file of District Munsif's Court, Erode, and on the file of Co-operative Sub Registrar, Erode, would have been dismissed, provided proper care had been taken by the guardian of the first defendant in defending those suits. Thai Muthammal the grandmother of the plaintiffs as next friend of the plaintiffs instituted the suit O.S. No. 6 of 1959 on the file of the Sub Court, Erode, for partition and for a declaration that the debts incurred by Chinnappa Mudaliar are illegal and immoral and not binding on the plaintiffs. The said suit was not properly framed as the main contention which could have been raised, was not raised. In that suit the prayer to set aside the decree was not included. The said suit O.S. No. 6 of 1959 was, dismissed on 20.10.1965. The plaintiffs\grandmother did not prosecute further. Had the guardian attended to O.S. No. 6 of 1959 on the file of Sub-Court, Erode, with vigilance, as is necessary in the circumstances, the claims of the defendants would not have prevailed at all. Therefore, the decree in O.S. No. 6 of 1959 on the file of Sub Court is not binding at all on the plaintiffs. The suit property was sold in E.P.R. No. 1505 of 1959 in O.S. No. 791 of 1952 on the file of the District Munsif's Court, Erode. Since it has been held in O.S. No. 6 of 1959 on the file of Sub Court, Erode, that the suit property herein will be available for partition, the Court auction will not affect the" rights of the plaintiffs for partition. Further, the Court auction is subsequent to the suit O.S. No. 6 of 1959. Therefore, the suit property described in A Schedule is to be partitioned as prayed for and the decrees set out in B Schedule are to be set aside as not binding on the plaintiffs.

(3.) It is inter alia contended in the written statement of the 8th defendant that the 'Kulachara' of the plaintiff's family was not agriculture. Their occupation is weaving and trade. The allegation that Chinnappa Mudaliar was an agriculturist and later ventured into trade is not true. Chinnappa Mudaliar was never an agriculturist. He was always a trader. He had no ancestral property. The suit property is not the ancestral property of Chinnappa Mudaliar. The suit property was purchased by Chinnappa Mudaliar out of his own earnings. When he migrated to Erode, he had no property at all. He had started a cloth business, made profits in the beginning and later enlarged his business and for. that business he incurred debts, and he was also making profits in the business and was paying income-tax. The allegation that Chinnappa Mudaliar fell into vices, had a concubine by name Pavayee and addicted to drink and other vices is not true. The allegations that the defendants 3 to 11 are the friends of Chinnappa Mudaliar, that the debts in their favour were created and recited in the Insolvency Petition to defraud the other creditors of Chinnappa Mudaliar, and that the defendants 3 v to 11 advised Chinnappa Mudaliar to file an Insolvency Petition are not true. The debts in favour of defendants 3 to 11 were true, valid and binding on the plaintiffs. After the death of Chinnappa Mudaliar his legal representatives were not brought on record in Insolvency Petition and so the petition was dismissed. After the dismissal of the Insolvency Petition, the creditors of Chinnappa Mudaliar had to file several suits on the file of District Munsif's Court, Erode, for recovery of the debts due from Chinnappa Mudaliar. The defendants 3 to 11 have all filed suits on the file of District Munsif's Court, Erode, for recovery of the sums due to them impleading the plaintiffs and the defendants 1 and 2 as the legal representatives of late Chinnappa Mudaliar. The suits were contested at the beginning and later on they were/decreed. The plaintiffs and the defendants 1 and 2 have no right to question those decrees. As the estate left by Chinnappa Mudaliar is his self-acquirefi property, it is answerable to the debts incurred by him. The admission and acknowledgments of the claim in the Insolvency Petition are valid to save time, and those admissions are also binding on the plaintiffs and the defendants 1 and 2. The plaintiffs were then properly represented by their next friends and guardian in those suits. Those decrees are binding on the plaintiffs. In O.S. No.6 of 1959 on the file of Sub Court all the contentions raised by the plaintiffs have been considered and negatived. The suit property was sold in Court auction in O.S. No. 971 of 1952. The decree in O.S. No. 971 of 1952 was obtained against Chinnappa Mudaliar himself during his lifetime. When the suit property was sold in Court auction, the plaintiffs and defendants 1 and 2 filed an application under Order 21, Rule 90, C.P.C., to set aside the sale in E.A. No. 377 of 1959 and the same was dismsissed. Against that order of dismissal, the plaintiffs preferred an appeal in C.M.A. No. 24 of 1960 on the file of the Sub Court, Erode, and it also ended in dismissal. Finally the plaintiffs took the matter to High Court in A.A.O. No. 1 of 1961 and it was also dismissed in 1962. Thus, finally the sale was confirmed. The 17th defendant, the Court auction purchaser of the suit property obtained possession of the properties through Court. He is in possession of the same. There is no property available for partition for the plaintiffs. The suit property is the self-acquired property of Chinnappa Mudaliar. The plaintiffs have no right by birth in it. Further, all the debts incurred by Chinnappa Mudaliar were for purpose of trade and therefore they are binding on the plaintiffs and the defendants 1 and 2. As the present contentions of the plaintiffs have been considered and negatived in O.S. No. 6 of 1959 on the file of the Sub Court, Erode, the present suit is barred by the principle of res judicata. The suit filed by the plaintifs is barred by time.