GURUSWAMY MUDALIAR Vs. AYYANAR THEVAR AND ORS.

JUDGEMENT

(1.) THIS appeal raises a question of Hindu Law. It is from a judgment of Somayya, J., under Clause 15 of the Letters Patent. The learned Judge considered that the judgment of this Bench in Satyanarayanappa v. : AIR1943Mad560 decided the question. We cannot subscribe to that opinion, but we are otherwise in agreement with the learned Judge.

(2.) THE appeal arises out of a suit for partition instituted in the Court of the District Munsiff of Srivilliputtur by the appellant and his elder brother, who is now dead. There were five defendants, but it is only necessary to refer to the first three. The first defendant was the father of the plaintiffs, with whom he is joint, the second defendant was the Rajapalayam Co -operative Urban Bank, Ltd., and the third defendant was the purchaser from the second defendant of the properties now in suit. The first defendant was a member of the Rajapalayam Cooperative Urban Bank, Ltd., and was indebted to it. As security for his indebtedness he mortgaged family properties to the second defendant. The debt was an antecedent debt and therefore binding on the sons. The first defendant failed to discharge the mortgage and consequently the second defendant took steps to enforce it under the provisions of the Madras Co -operative Societies Act, 1932. In due course the second defendant obtained an award and brought the properties covered by the mortgage to sale. At the auction the second defendant purchased the properties and subsequently sold them to the third defendant.

(3.) IN Satyanarayanappa v. : AIR1943Mad560 this Bench held that where only some members of a Hindu joint family are members of a co -operative society and the family as such is not a member, Section 51 of the Madras Co -operative Societies Act does not prevent a coparcener who is not a member of the society from instituting a suit for a declaration that a sale held in execution of an award obtained by a society has not passed his interest in the property to the purchaser. Such a suit had been dismissed in limine on the ground that it did not lie. We held that it did lie and remanded the case to the Original Court to be tried on the merits. In doing so we pointed out that at the hearing the pious obligation rule might have bearing as against the sons of the mortgagor, but we went no further than this.