NACHIAPPA CHETTIAR Vs. CHINNAYASAMI NAICKER

JUDGEMENT

(1.) The suit is to recover the amount due under a promissory note executed by the late Zamindar of Mannarkottai which according to the appellant (plaintiff) is an impartible zamindary.

(2.) The first defendant was the undivided brother and is the successor of the late zamindar and the second defendant is his widow. The lower Courts have found that the debt was not contracted for family purposes or the use of the zamin and have dismissed the suit. In second Appeal it is contended before us, that as the zamindar is impartible, it is not joint family property, but that it was the property of the late zamindar and liable, therefore, in the hands of the first defendant, his heir, for payment of his debt irrespective of the nature of such debt. In the lower Courts, this plea was disallowed on the ground that it was not properly raised in the pleadings.

(3.) I am of opinion that the lower Courts are wrong in not deciding this question and that the plaintiff is entitled to a decision on this point. I accordingly proceed to decide whether the plaintiff is entitled to recover his debt out of the zamindary, assuming in favour of the appellant, that Mannarkottai is an impartible zamindary.