SAMIAPPA GOUNDER AND ORS. Vs. SIVABALAN AND ORS.

JUDGEMENT

(1.) DEFENDANTS 1 to 3 against whom the suit was decreed on appeal by the learned District Judge of Coimbatore reversing the dismissal of the suit by the learned Subordinate Judge of Coimbatore, have preferred this Second Appeal.

(2.) THE facts leading up to the second appeal not now in dispute may be briefly set out. The suit properties along with other properties belonged to one Kandaswami Pillai who died in 1923 leaving four sons Sivagurunathan, Chithran, Thirumurthi and Jagadisan by his first wife and three sons Palaniswami, Saravanaperumal and Jagannathan by his second wife. With considerable properties he left also large debts. The eldest son Sivagurunatha as family manager dealt with the properties and incurred further debts. At the instance of a creditor Sivagurunatha was adjudged an insolvent in I.P. No. 43 of 1924 on the file of the District Court, Coimbatore, and on orders of the Court the entire properties of Kandaswami Pillai also vested in the Official Receiver. The suit properties formed part of an extent of 72.53 acres which vested in the Official Receiver and the entire extent were sold by him on 4th September, 1934, for the low figure of Rs. 800 the purchaser being no other than one Meenakshisundaram Pillai, the son -in -law of Kandaswami Pillai. Before the sale, one of the sons Jagannadhan had sent a notice pointing out that only the share of Sivagurunatha in the properties could vest in the Official Receiver and only his share in the properties should be sold. After the sale by the Official Receiver, Jagannadhan on 1st September, 1935, filed a suit O.S.No. 223 of 1935 on the file of the Sub -Court, Coimbatore, for partition and separate possession of his share in the properties of his father Kandaswami Pillai. In that suit Jagannathan challenged the Official Receiver's sale of the properties contending that only the insolvent's 1/7th share could be conveyed by the Official Receiver. His six brothers including the insolvent were made party defendants to the suit, besides the Official Receiver and various creditors. The purchaser of the properties, Meenakshisundaram Pillai, was impleaded as 35th defendant. Pending that suit Meenakshisundaram Pillai sold his right in the properties to one Valliammal, sister of defendants 1 and 2 in the suit out of which the present Second Appeal arises. In the partition suit O.S. No. 223 of 1935 excepting the insolvent brother, the other brothers filed written statements supporting the claim of the plaintiff and claiming their respective 1/7th share each in the properties. The suit was dismissed by the trial Court and the matter was brought up on an appeal in A.S. No. 158 of 1938 to this Court. Pending the appeal, Valliammal the purchaser of the properties from Meenakshisundaram Pillai, conveyed her rights in the properties to her brothers the present defendants 1 and 2. Thereupon the present defendants 1 and 2 were impleaded as party defendants in the pending appeal in this Court. A compromise was entered into therein between the present defendants 1 and 2 and the sons of Kandaswami Pillai excepting the insolvent son. It was agreed that the present defendants 1 and 2 should take one half of the properties sold and the other half should be taken by the non -insolvent six sons of Kandaswami Pillai. Defendants 1 and 2 were also made liable for mesne profits in respect of the shares which they have to give up to the sons. Exhibit A -2 is the certified copy of the judgment in A.S. No. 158 of 1938 pursuant to the compromise and Exhibit B -1 dated 16th October, 1942, is the certified copy of the compromise decree passed by this Court in A.S. No. 158 of 1938.

(3.) PLAINTIFFS 1 to 3 in the present suit are the sons of Palaniswami Pillai and Plaintiffs 4 to 6, the sons of Saravanaperumal. The third defendant is the son of the first defendant. He claims title to a portion of the suit properties as a purchaser from one Janaki Ammal who is stated to have purchased the property in execution of a decree against the first defendant. As stated already defendants 1 to 3 are appellants in the Second Appeal. The plaintiffs have contended that the sale evidenced by Exhibit A -1 executed by their fathers and their four paternal uncles was not supported by any necessity or benefit. The Courts below have concurred in holding that the brothers got the properties under the compromise as joint family properties, and that their sons had interest in the properties. The right of the present plaintiffs to impugn the sale has been found in their favour. The sale recited cash consideration and it is observed by the Courts below that there is absolutely no evidence to show that on the date of the sale the brothers had any necessity to borrow or sell the properties. The trial Court has observed that there was no escape from the conclusion that the sale under the original of Exhibit A -1 was not valid and binding on the plaintiffs. In the lower appellate Court this finding was not challenged learned Counsel appearing for defendants 1 and 2 not arguing that the safe was valid and binding on the plaintiffs. Notwithstanding the finding that the sale was not binding on the plaintiffs, the trial Court held that the suit as framed was not maintainable. It was contended for defendants 1 to 3 that there were other grandsons of Kandaswami Pillai by other sons and that the suit by the plaintiffs alone without impleading them as parties was bad and could not be maintained, While otherwise finding in favour of the plaintiffs, the trial Court accepted this contention on behalf of the defendants and dismissed the suit. The trial Court was of the view that under the compromise the six sons of Kandaswami Pillai excluding the insolvent son took the properties from the alienees jointly and it could not be said that the father of plaintiffs 1 to 3 and that of plaintiffs 4 to 6 had become divided from their brothers.