C S ANANTHANARAYANA IYER Vs. SIVARAMAKRISHNA IYER

JUDGEMENT

(1.) The appellant as plaintiff instituted the suit out of which this appeal has arisen for partition and recovery of an one-fourth share in a piece of wet land bearing survey No. 18-A in the village of Avadaiyaparai, Erode Taluk. He purchased this share from one Sundaram Ayyar under a sale deed dated 5 November, 1937. Sundaram Ayyar is the youngest of four brothers who are all sons of one Anantharamalinga Ayyar now deceased. The three elder brothers executed a mortgage in favour of the first respondent on 10 June, 1911, to secure the repayment of a loan of Rs. 1,500 advanced to them. The suit property was one of the items comprised in the mortgage. Six years later there was a partition in the family of the mortgagors and the arrangements then made are embodied in a partition deed dated 24th July, 1917. By that deed the properties of the family were divided among the several members of the family, namely, the father and the four brothers. The suit property amongst others fell to the share of the father, and he was given the right to enjoy them during his lifetime. Afterwards his wife was to enjoy them and after her death they were directed to be taken by the four sons in equal shares. There was also a list of family debts appended to the deed of partition which the sons undertook to discharge and among them was the mortgage debt due to the first respondent.

(2.) In 1928, the first respondent instituted O.S. No. 208 of 1928 in the Court of the Subordinate Judge of Coimbatore to enforce the mortgage impleading the mortgagors alone as defendants. In due course preliminary and final decrees were passed and the entire mortgaged properties inclusive of the land now in suit were finally brought to sale in execution and purchased by the decree-holder himself. The decree-holder--now first respondent--also obtained possession through Court on 21 April, 1934. As already indicated, Sundaram Ayyar, the vendor of the appellant, had not been made a party to the suit so as to bind his interests in the suit property. On 5 November, 1937, Sundaram Ayyar sold his one-fourth share in two items of properties, of which one was the property now in suit. On the strength of this sale deed the appellant instituted the suit out of which the present appeal arises for obtaining the reliefs mentioned. The District Munsiff who tried the suit in the first instance dismissed the suit holding that the appellant had no right to sue for partition and that his only remedy was to bring a suit for redemption of the property, which he held was liable to contribute a proportionate part of the mortgage debt. On appeal to the District Judge of Coimbatore, that decision was affirmed. Hence this second appeal.

(3.) On behalf of the appellant it was contended that the mortgage of the 10 June, 1911, executed in favour of the first respondent did not bind the interest either of the father Anantaramalinga Iyer or of his son Sundaram Ayyar as neither of them was a party to it and as by that time a division in status had been established among the members of the family. But it is clear that in the partition deed this debt was treated as a binding liability of the family which the sons including Sundaram Ayyar undertook to discharge. It is not therefore open to the appellant to plead that the debt did not bind Sundaram Ayyar.