THIRUMAGARAL MUDALIAR Vs. MURUGA PILLAI

JUDGEMENT

(1.) This is a second appeal preferred against the decree and judgment of the learned Subordinate Judge of Vellore in A. S. No. 131 of 1955, reversing the well-considered decree and judgment of the learned District Munsif of Ranipet in O. S. No. 214 of 1953.

(2.) The established facts are: Two brothers by name Sundaresiah and Ramachandriah had mortgaged their properties in favour of the plaintiff Tirumagaral Mudaliar under Ex. A-13 dated 9-5-1949 for Rs. 1000/-. The mortgagee was pressing the mortgagors for repayment. Therefore they negotiated with the defendant Muruga Pillai to sell the suit properties to him and executed the sale deed Ex. B-1 dated 2-1-1953. It need not be pointed out that the primary and immediate object of this sale was the discharge of the indebtedness due to the plaintiff.

(3.) The evidence in this case clearly shows that the defendant was unable to discharge the indebtedness due to the plaintiff and of which he had taken a Havala. Therefore the plaintiff had filed the suit O. S. No. 56 of 1953 in the District Munsif's Court, Kancheepuram. On receipt of summons Ramachandriah P.W. 4, and his grandfather Ramakrishnayya were sent by Sundaresiah to Chitalapakkam to meet the defendant and get the debt due to the plaintiff discharged. The defendant said that he had no ready cash. Therefore, they took him to the plaintiff in Magaral village and requested him to grant some more time. The plaintiff refused to comply with their request. The defendant thereupon informed his vendors that he did not want the sale to be completed by registration and that the properties may be sold to others. In other words, by agreement of parties the sale in favour of defendant was cancelled. P.W. 4 agreed to refund the advance taken from the defendant. Exs. A-3 to A-5 are the 3 postal acknowledgment receipts for Money Orders sent by Sundaresiah to the defendant for Rs. 100/-, Rs. 40/- and Rs. 30/- respectively. Exs. A-6 and A-7 relate to a refused money order. The defendant is not producing the money order coupons wherein the vendors have definitely noted that those money orders represented the refund of advance. Ex. A-7 which relates to the refused money order contains the coupon and this coupon mentions this information. Ex. A-8 is a letter written by the defendant between the dates of Ex. A-4 and A-5 in which he has stated that he has received Rs. 140/- by then towards the advance and has demanded payment of the balance as well as other items. That he wrote such a letter has been admitted by the defendant in his statement before the District Registrar, Ex. A-10.