VARAGIMA RAMASOMASUNDARA ARULAPPA NAIKER Vs. VRRMSTMRMURUGAPPAL CHETTIAR

JUDGEMENT

(1.) I agree with the judgment which my learned colleague has prepared and will now deliver. Abdur Rahim, J.

(2.) The appellant as plaintiff in the suit seeks to recover the Pavali Zamin, a small impartible Zamindari which belonged to his ancestors and was sold in 1869 at a court auction during the life time of his father and purchased by one Chidambaram Chettiar the 1st Respondent s father. It was in execution of a decree obtained by Chidambaram Chettiar himself in a suit (O.S. No 10) of 1866 that the sale took place. The plaintiff s father died on the 24th January 1894 and the present suit was instituted on the 23rd January 1906 just on the last day of the 12 years since the plaintiff s father s death. The Subordinate fudge having found on the main issues on the merits against the plaintiff dismissed the suit. By the 3rd issue the plaintiff raised the contention that the Zamindari in question was inalienable by custom but the finding of the Subordinate Judge on this point which is against the plaintiff has not been contested before us. It could not be and has not been disputed that the debts to satisfy which the sale took place were binding on the last Zamindar and as the alleged custom of inalienability has not been established, there can be no doubt that the Zamindari, of which the plaintiff s father was the full owner according to the law as well settled in this Presidency by the Pittapur case Sri Raja Rao Venkatasurya Mahipati Ramaltrishna Rao Bahadur v. The Court of Wards (1898) I.L.R. 22 M. 383 following the decision in Sartaj Kuari s case (1888) I.L.R. 10 A. 272 s. c. L.R. 15 T.A. 51 was liable to be sold absolutely in execution of the 1st defendant s father s decrees. The whole of the argument, therefore, addressed to us by the learned Vakil for the appellant is concentrated on the question--what was in fact sold under the decree ? He contends that what was sold was not the entire proprietary interest of the Zemindar which he actually possessed in the Zemindari but a mere life interest. The argument is that the decisions of this Court shewed that the law as interpreted in this Presidency up to 1860 was that an impartible Zemindari was inalienable except during the Zemindar s life and as under the sale certificates the right, title and interest of the plaintiff s father was the subject of sales we must presume that what was intended to be sold was the Zemindar s life interest. He has also contended that the debts embodied in this decree in O.S. No. 10 of 1866 have not been incurred for proper or necessary purposes and that the doctrine that a Hindu son was liable for the debts of his father which were not shewn to have been incurred for illegal or immoral purposes had no vogue in this Presidency until 1881 i.e., long after the sale in question in this case--when a Full Bench of this Court Ponnappa Pillai v. Pappuvayyangar (1881) I.L.R. 4. M. 1 held that the principle of the Privy Council ruling in Girdhari Lal s case (1879) L.R. 1 I.A. 321 was applicable.

(3.) In dealing with these contentions we must bear in mind that as pointed in Abdul Aziz Khan v. Appasami Naicker (1901) I.L.R. 27 M. 131 at p. 141 the question what the Court intended to sell and what the purchaser understood that he bought is one of fact or rather of mixed law and fact and must be determined according to the evidence in the particular case and as observed in Veerabadra Aiyar v. Marudeya Nachiar (1910) I.L.R. 34 M. 188 at 205 and 206 in investigating this question the Court is not confined to any one fact. What is to be gathered from the numerous decisions on the subject which are summarised in the last mentioned case is that the character of the debt the terms of the sale certificate which formed the contract of the parties, the law as interpreted at the time of the sale the frame of the suit, the judgment and decree, the execution proceedings, the advertistnents for sale,the adequacy or inadequacy of the purchase money and the conduct of the parties are all circumstances which may legitimately be considered in an inquiry of this nature and no single circumstance can be regarded as conclusive by itself.