AYYAMPERUMAL CHETTIAR (DIED) AND ORS. Vs. PALANIANDI CHETTIAR

JUDGEMENT

(1.) THIS Second Appeal is preferred against the decree and judgment of the learned Subordinate Judge of Tiruchirappalli in A.S. No. 31 of 1954, reversing the decree and judgment of the learned District Munsif of Kulitalai in O.S. No. 499 of 1950.

(2.) THE facts are: The appellant plaintiff instituted O.S. No. 494 of 1945 on the foot of two promissory notes for Rs. 150 and Rs. 160, dated 5th September, 1938 and 6th March, 1939, respectively executed by one Meenakshisundaram Pillai and his undivided sons and obtained a decree against them and in execution thereof attached the suit properties. The respondent defendant claiming to be a mortgagee of the said properties from Sellathammal, the daughter of Meenakshisundaram Pillai, who in her turn claims to be the vendee from her brothers to whom it is alleged that these properties were allotted in the partition between them and their father in 1941, filed E.A. No. 441 of 1949. That claim was allowed. Thereupon the suit out of which this second appeal arises was filed to set aside that claim order and the question that arose for consideration was whether the claim order was liable to be set aside. The learned District Munsif found the partition between Meenakshisundaram Pillai and his sons was unfair and that valuable properties were given to the sons with a view to defeat and delay the rights of the creditors. He also found that the sons of Meenakshisundaram Pillai had transferred the properties to their sister with a view to screen the same from the creditors and that it was not a bonafide sale. He further held that the mortgage in favour of the defendant was only a make -believe affair and that no title passed to the defendant thereunder. Therefore, the learned District Munsif set aside the claim order and gave a decree to the plaintiff.

(3.) AGAIN ,