RAMABHADRA NAIDU Vs. KADIRIYASAMI NAICKER

JUDGEMENT

(1.) The father of the respondent on this appeal was formerly the owner of a small zamindari known as Doddappa Nayakanur, and on September 15, 1893, he executed a mortgage of the property in favour of one Sabhapathi Chetty. The mortgagee took proceedings in 1901 in the Subordinate Court of Madura against the mortgagor and against the respondent, who was his son, to enforce the mortgage, and obtained in October, 1901, a decree for the amount of the mortgage money and, in default, for sale of the mortgaged properties. The mortgagee, in 1906, assigned his decree in favour of the present appellant, who brought the mortgaged properties to sale in execution of the decree, and having obtained leave to bid, purchased them on April 22, 1907. The sale was confirmed on July 1 of the same year, and delivery was made to the appellant on August 3, 14 and 15, 1907. The questions that have arisen upon this appeal depend entirely upon the determination of what was actually purchased by the respondent. The facts that give rise to the dispute may be shortly stated. The mortgage included in its parcels "the pannai lands in" certain named villages "which belong to me and which are in my enjoyment." At the date of the mortgage certain pannai lands to the extent of 226 kulis were not in the enjoyment of the mortgagor at all. They were in fact in the enjoyment of the widow of the previous zamindar of the property, who had been in the possession of them since 1877 by an arrangement made with her husband.

(2.) The learned judge of the Subordinate Court of Ramnad at Madura and the judges of the High Court at Madras, from whom this appeal has been brought, have alike decided that in these circumstances these 226 kulis were not included in the mortgage. Their Lordships are in entire agreement with this opinion and they have nothing to add by way of emphasis or further reasons to the arguments stated by the learned judges as those which lead to their conclusion.

(3.) The widow died in June, 1901, and at the date of the decree in October, 1901, in execution of the mortgage, the mortgagor and his heirs were in possession of these properties. The decree for the realisation of the mortgage set out the villages and hamlets, and directed their sale with all "the pannai lands belonging to the defendants and in their enjoyment," and the sale proclamation followed the words of the decree. The property was actually sold on April 22, 1907, and objections were taken to the sale, among other things, upon the ground not that the pannai lands were outside the mortgage and excluded from the sale proclamation, but because there ought to have been a list of the pannai lands which contained by measurement 500 acres; these objections were disallowed and the sale was, by order of the Subordinate Court, confirmed on July 1, 1907, and this order was supported on appeal. The sale certificate was dated July 25 of the same year, and it included "the whole of the pannai lands belonging to and enjoyed by the sons of the first defendant, who acquired them as legal representatives of the first defendant" and all incomes, rights and privileges attached to the zamindari.