MUTHUKUMARU MANIAKARAR Vs. PETHIA MANIAKARAR

JUDGEMENT

(1.) The question for decision in this appeal is whether the plaintiffs are precluded by Section 66, Civil Procedure Code, from praying for a declaration that the fourth defendant has no right to item 1 of the property in the schedule to the plaint in the suit out of which this appeal arises. The relevant facts are few and may be briefly stated. The defendants 1 and 2 executed a deed of mortgage dated the 18 July, 1924, in favour of the plaintiffs undivided father, one Ramasami Maniagarar. Five items of property were mortgaged thereunder and they are items 1 to 5 of the schedule to the plaint. Item 1 was brought to sale in execution of a decree for arrears of rent by the revenue Court and purchased by the fourth defendant on the 4 July, 1934. The present suit has been filed by the plaintiffs, sons of the said Ramasami Maniagarar, to recover a sum of Rs. 150 as being the balance due under the said mortgage. In the plaint they allege that item 1 though purchased by the fourth defendant, was really for their (plaintiffs ) benefit, that at the time of the purchase the fourth defendant was acting as kariasthan or manager of their property, that the property was purchased with their funds for a sum of Rs. 300, that ever since the date of the purchase they have been in possession of the property and enjoying the profits thereof and paying kist on the same, that they have given credit in the suit for the value of the said item and only prayed for a decree for the balance and that since the fourth defendant is setting up title thereto they have impleaded him and prayed for a declaration in regard to that item and for a sale of the remaining items of the hypotheca, namely, items 2 to 5 of the plaint schedule. The fourth defendant denied that the purchase was on their behalf but asserted it was only for his benefit and that in any event under Section 66, Civil Procedure Code, the plaintiffs are not entitled to the declaration prayed for. So far as the mortgage was concerned, there is no defence by defendants 1 to 3 and there was a decree as prayed for. But the learned District Munsif dismissed the suit against the fourth defendant on the ground that Section 66 precludes the plaintiffs from asking for a declaration of right in respect of item 1. On appeal, the learned Subordinate Judge confirmed his judgment taking the same view. The question therefore is whether this view is tenable.

(2.) Two contentions were raised by Mr. Thiagaraja Aiyar on behalf of the plaintiffs: (1) The property having been purchased in a sale in execution of a rent decree, Section 66 Civil Procedure Code, is not applicable and it would not prevent the plaintiffs from pleading that the purchase was for their benefit. (2) Assuming that Section 66 applied, the fourth defendant having been the kariasthan for the plaintiffs who were on the date of the purchase, and are still minors, with their funds, under the second clause of that section, the purchase must be deemed to have been made fraudulently or without their consent and therefore they are entitled to the declaration prayed for.

(3.) I shall now deal with the first contention, namely, the applicability of Section 66 to sales in execution of decrees for rent by a revenue Court. Section 66 (1) runs thus: No suit shall be maintained against any person claiming title under a purchase certified by the Court in such manner as may be prescribed on the ground that the purchase was made on behalf of the plaintiff or on behalf of some one through whom the plaintiff claims.