VADLA NARASIMHULU Vs. VADLA RAMAYYA

JUDGEMENT

(1.) In this appeal, the question for my consideration is whether the Son is bound by the court sale of the properties mortgaged by his lather, though he is not made a party to the mortgage suit The plaintiff, Vadla Nara Simhulu, is the son of the 1st defendant Vadla Ramaish The 1st defendant borrowed RS 2,000 from the 2nd defendant, Mundrinti Erranna, on 22/03/1952 agreeing to pay that amount with interest at 18%, and he also executed a simple mortgage deed on the same date with respect to items 1 and 2 of the plaint schedule as a Security for that debt Since the father did not pay the amount the 2nd defendant filed a suit .O.S, 199/1964 against him on the foot of the mortgage deed and obtained a preliminary decree on 21st Oct. 1965. The final decree was passed on 2nd Jan. 1967. Then, an execution Petition was filed in 1968 and items 1 and 2 were purchased by the 2nd defendant on l 1/03/1969 for RS. 5,210 and he took delivery of possession of the properties on 1st Sept. 1969. Items 1 and 2 of the plaint schedule are dry lands and item 3 is house on 19th Aug. 1971 the plaintiff Bled the suit for declaration of his title to the eastern half share of the lends shown in the B schedule and for possession thereof from the and defendant and for account of mesne profits from 1st Sept 1969. His case was that they were ancestral properties, that he had half share in them, that the lands are worth about RS. 40,000 that there was an oral partition between himself and his father in 1960, that he got eastern half of the lands to his share and he is in enjoyment of the same since then, that the 1st defendant had without any necessity or benefit to the family mortgaged the lands (items 1 and 2) to the 2nd defendant, and the mortgage is not binding upon him, and consequently, the sale is not valid and binding upon him.

(2.) The 2nd defendant resisted the suit by contending that there was no partition between the plaintiff and the 1st defendant , that the 1st as manager of the joint family had incurred the debt for the family necessity and has executed a mortgage and it is binding upon the plaintiff and come subsequently the sale is valid.

(3.) The learned Subordinate Judge dismissed the suit holding that the properties were joint family properties that there was no oral partition, and the plaintiff is bound by the mortgage decree obtained against the father, and consequently, the sale is valid and binding upon the plaintiff.