RAMASWAMI NAICKEN Vs. VISWANATHA CHETTY ALIAS SUBRAMANIA CHETTY

JUDGEMENT

(1.) The Courts below have differed on the question whether the plaintiff, here respondent, is entitled to reimbursement of a sum of Rs. 1007 together with interest subsequent to the suit, from defendant 1, the appellant in this second appeal. The relevant facts are these.

(2.) Subramania Chetti (defendant 2) and Rajagopapala Chetti (the deceased father of defendants 3 and 4 and the husband of defendant 5) were brothers and sons of Chinnu Chetti alias Muniappa Chetti on whose death they inherited an extent of 3 acres 95 cents of land as the heirs of their father. The two brothers sold this land to one Kandaswami Chetti who not having been put in possession of the land, filed a suit O. S. No. 741 of 1939 on the file of the District Munsif's Court of Salem for recovery of possession of the property sold. He impleaded as parties to the suit Subramania the present defendant 2 and his brother Rajagopala Chetti, as defendants 1 and 2. Rajagopala Chetty died pending the suit whereupon his legal representatives, the present defendants 3 to 5 were impleailed as defendants 7 to 9 in that suit. On 8th March 1941, the suit O. S. No. 741 of 1939 was compromised and a consent decree was passed to the effect that Kandaswami Chetti should be paid a sum of Rs. 1900 with subsequent interest on or before 7th March 1942 and on receiving such payment, should reconvey the properties purchased by him to defendants 1 and 7 to 9 in that suit and defendants 2 to 5 in the present suit. On default of such payment, Kandaswami Chetti was to take possession of the properties as absolute owner. Under Ex. D-2 dated 1st March 1942 the present defendants 3 to 5 sold the entire extent of 3 acres 95 cents to the present plaintiff who was no other than the son-in-law of Rajagopala Chetti and defendant 5, as well as the brother-in-law of defendants 3 and 4. Under Ex. D.2 the plaintiff was directed to put into Court a sum of Rs. 2014 for payment of Kandaswami the decree-holder in O. S. No. 741 of 1939 that sum representing the principal and interest payable to him under the compromise decree. The plaintiff also got an assignment of the rights of the present defendants 3 to 6 under the decree in O. S. No. 741 of 1939 entitling them to a reconveyance of the property along with the present defendant 2. The plaintiff paid the sum of Rs. 2014 into Court before the due date, for payment to Kandaswami.

(3.) Under Ex. D-3 dated 6th March 1942 Subramania Chetti the present defendant 2 sold his share of the 3 acres 96 cents to the present defendant 1 for Rs. 1400 out of which a sum of Rs. 1007 was directed to be paid to the credit of O. S. No. 741 of 1939, the said sum of Rs. 1007 representing the vendor's half share of the amount payable to Kandaswami under the compromise decree in O. S. No. 741 of 1939. It is the case of defendant 1 that when he went to deposit Rs. 1007 into Court on 7th March 1942, he found on enquiry that the entire sum of Rs. 2014 payable under the decree had been deposited by the plaintiff and that he therefore kept the money in a bank and give a telegram to defendant 3 that the money was ready for payment. Apparently he was not aware of the sale-deed Ex. D-2 in favour of the plaintiff. That defendant 1 had the money ready on that date is shown by the extract from the bank book.