SIVA SUBRAMANIA MUDALIAR Vs. GNANASAMMANDA PANDARA SANNADHI

JUDGEMENT

(1.) The plaintiff in this suit is the present Pandara Sannadhi of the Dharmapuram Adhinam. The suit is for the recovery of a portion of the consideration which the plaintiff alleges to be due from the 1st defendant and from the defendants Nos. 16 to 20 for the sale of a village belonging to the Adhinam which was made by his predecessor in office in favour of the 1st. defendant on the 12th July, 1901, for Rs. 1,27,000. The plaintiff alleges that the portion of the consideration now sued for is still due from the vendee and he seeks in this suit to enforce his lien for the unpaid purchase money under Section 55, Sub-section 4, Clause (v) of the Transfer of Property Act. The vendor Pandara Sannidhi died subsequent to the sale and the plaintiff is his successor in the office. The defendants Nos. 16 to 20 are members of the undivided family to which the 1st defendant belongs and have been impleaded on the ground that the property was purchased for the benefit of the family. The defendants Nos. 2 to 15 are purchasers and mortgagees of some of the properties sold to the 1st defendant. The lower court gave a decree in the plaintiff s favour for a portion of the amount sued for. This appeal relates to two of the items which the lower court found to be due to the plaintiff. The first of these items - a sum of Rs. 2,600 - is described in the sale deed, Exhibit A, as "the sum retained for payment to Sankaramurthi Mudaliar, an auction-purchaser of the lands sold in auction for arrears of revenue of the last Fasli of Pattavilaham being Chidambaram Nataraja (sic)attalai, and for obtaining a sale deed in my name." The second item - Rs. 2,842-8-0 - is stated in Exhibit A as received by the vendor in cash, but the 1st defendant admits that it was not so paid, but was reserved with him for a particular purpose which we shall refer to hereafter.

(2.) The plaintiff states in his plaint that the amount of the 1st item was not paid to Sankaramurthi Mudaliar as required under the sale deed, and that the sale was not obtained in favour of the Adhinam. The defence with regard to this item was that the amount was paid to Sankaramurthi Mudaliar and was utilised by hiin for purchasing the Pattavilaham land referred to in Exhibit A, the purchase being made benami for the plaintiff s mutt. The plaintiff s case is that, on account of the defendant s failure to pay the amount to Sankaramurthi Mudaliar and to get a conveyance from him of the land in favour of the plaintiff s predecessor or the plaintiff, Sankaramurthi Mudaliar sold the lands to one Chidambaranatha Thambiran of the plaintiff s Adhinam for Rs. 4,000 on the 13th July 1906 (Exhibit F). The defendants pleaded also that the suit was barred by limitation, but the Subordinate Judge decided this issue in the plaintiff s favour on the ground that, as the suit was to enforce the plaintiff s lien, the period of limitation applicable was 12 years from the time when the money was payable. On the merits with respect to the first item, the Subordinate Judge held that Sankaramurthi Mudaliar, the purchaser at the revenue sale, might have been benamidar for the Pandara Sannadhi, and he also held that Sankaramurthi Mudaliar received the sum of Rs. 2,600 required for the purchase from the 1st defendant, but he was of opinion that the amount was not paid by the 1st defendant on the plaintiff s account but as part of the sum of Rs. 5,000 which he had agreed to pay to Sankaramurthi as brokerage for his services in inducing the Pandara Sannadhi to sell the village to the 1st defendant, though the Pandara Sannadhi had already agreed to sell it to a third person. The Subordinate Judge seems to place considerable reliance on the statement in Exhibit VI, a sale deed executed on the 15th September 1901, nearly two months after the date of Exhibit A, by the 1st defendant in favour of the 2nd and 3rd defendants of a portion of the village, that, out of the consideration money for that sale, Rs. 2,600 had been received by the 1st defendant to get back the Pattavilaham lands which had been sold away at the revenue sale, taking the statement to mean that, so far as the 1st defendant was concerned, Sankaramurthi Mudaliar was the actual purchaser at the revenue sale, and that "he took the loan from the 2nd defendant to be paid to the Pandara Sannadhi to enable him to re-purchase those lands from the Mudaliar." We are of opinion that the inference drawn by the Subordinate Judge from the statement in Exhibit VI just referred to is erroneous.

(3.) Their Lordships, after dealing with the evidence on this question, said: We are of opinion that Sankaramurthi made the purchase of Pattavilaham land benami for the Pandara Sannadhi with the monies paid by the 1st defendant as part of the consideration for Exhibit A. We therefore reverse the finding of the Subordinate Judge with regard to this item.