V R S AVALAPPA NAICKER Vs. VRRMSTMRMURUGAPPA 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 Pavaly 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 first defendant s father. It was in execution of a decree obtained by Chidambaram Chettiar himself in a suit (Original Suit No. 10 of 1866) that the sale took place. The plaintiff s father died on 24th January 1894 and the present suit was instituted on 23rd January 1906 just on the last day of the 12 years since the plaintiff s father s death. The Subordinate Judge having found on the main issues on the merits against the plaintiff dismissed the suit. By the third 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 Venkata Surya Mahipati Rama Krishna Rao Bahadur v. The Court of Wards (1899) I.L.R., 22 Mad., 383 (P.C.) following the decision in Sartaj Kuari v. Deoraj Kuari (1888) I.L.R., 10 All., 272 (P.C.), was liable to be sold absolutely in execution of the first defendant s father s decree. 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 zamindar which he actually possessed in the zamindari but a mere life-interest. The argument is that the decisions of this Court showed that the law as interpreted in this Presidency up to 1869 was that an impartible zamindari was inalienable except during the zamindar s life and as under the sale certificate the right, title and interest of the plaintiff s father was the subject of sale, we must presume that what was intended to be sold and was in fact sold was the zamindar s life-interest. He has also contended that the debts embodied in the decree in Original Suit No. 10 of 1866 have not been proved to have 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 shown 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 in Ponnappa Pillai v. Pappuvayyangar (1882) I.L.R., 4 Mad., 1 held that the principle of the Privy Council ruling in Girdharee Lall v. Kantoo Lall (1874) L.R., 1 I.A.,321 was applicable.

(3.) In dealing with these contentions we must bear in mind that as pointed out in Abdul Aziz Khan v. Appayasami Naicker (1904) I.L.R., 27 Mad., 131 at p. 142(P.C.) 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. Marudaga Nachiar (1911) I.L.R., 34 Mad., 188 at pp. 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 advertisements 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.