RAJASEKARAN AND ORS. Vs. NAGARATHINAMMAL AND ORS.

JUDGEMENT

(1.) THESE two appeals raise a common question which apparently prompted the Court below to try the same together and render a common judgment. As the Court below considered the rank of parties with reference to Original Suit No. 47 of 1967 on the file of the Subordinate Judge of Salem, we shall adopt the same in the course of our judgment.

(2.) ORIGINAL Suit No. 47 of 1967 was a suit on a mortgage filed by the mortgagee as against the executants impleading the executants who are the mother and son as also the grand -children of the first executants besides the subsequent mortgagee. One of the executants having by then become insolvent, the Official Receiver was also made a party. The other suit was a suit for partition by the children of one of the executants in the earlier mortgage questioning the mortgages executed by other father and claiming that such, debts do not bind them and that, therefore, they are entitled to their legitimate share without being burdened with any obligation to pay the debts incurred by their father.

(3.) TO State briefly the facts, Nagarathnammal (the first Defendants) is the grand -mother. We are not concerned with her husband who was admittedly the common ancestor in the family and who was engaged in Maligai trade. His son is Ramachandra Chettiar who is the second Defendant in the suit. It is common ground that after the death of the common ancestor, the first and second Defendants respected the Kulachara and continued the family Maligai business. From time to time, to wit, under promissory notes Exhibits A -2, A -3, B -29, B -30, B -31 and B -32, the first and second Defendants borrowed moneys between the years 1958 and 1964 from third parties to meet the family expenses and for the ancestral business of Maligai and presumably for the purpose of investing moneys in a new venture started by the second Defendant which consisted of taking produced film for distribution. In the course of such borrowing and in order to discharge Exhibits A -2and A -3, the first and second Defendants as also the sixth Defendant who was a minor at that time represented by the first Defendant executed the mortgage Exhibit A -1 dated 7th September, 1964 and borrowed thereunder moneys not only to discharge Exhibits A -2 and A -3 but also for the family expenses, Maligai business and probably for the other new Venture started by the second Defendant. Again, in order to discharge Exhibits B -29, B -30, B -31 and B -32, the first and second Defendants along with the minor sixth Defendant executed a mortgage Exhibit B -28 dated 5th June, 1965. Both the mortgages under Exhibits A -1 and B -28 remained unpaid. The mortgagee under exhibit B -28, namely, one V. G. Srinivasan Chettiar assigned the mortgage in favour of eight Defendant, one Veerappan. As the mortgages remained undercharged, the mortgagee under Exhibit A -1 filed the suit Original Suit No. 47 of 1967 impleading the first Defendant, second Defendant and the sixth Defendant who by then became a major and also impleaded Defendants 3 to 5 who were the minor children of the second and fifth Defendant. The Official Receiver by then represented the estate of the insolvent (Second Defendant). Mr. Veerappan, the eighth Defendant was the assignee of the second mortgage, which assignment is established and admitted to be true as evidence by Exhibit B -37. When the above suit on the mortgage Exhibit A -1 was pending the brother of the second Defendant, namely, the sixth Defendant who by then became a major and the sons of the second Defendant. namely, the third and fifth Defendants together filed a suit for general partition in Original Suit No. 363 of 1968 impleading the grand mother, the father the first mortgagee, the earlier second mortgagee, the assignee under the second mortgage and also another Defendant as the seventh in that suit who by then was said to have advanced moneys to the father under Exhibit B -38.