S SABAPATHY PILLAY Vs. VANMAHALINGA PILLAY

JUDGEMENT

(1.) The judgment debtor is the appellant in this appeal preferred against the order of the Subordinate Judge s Court of Mayavaram passed on the execution petition filed by the 2nd and 3rd defendants as decree holders.

(2.) The facts are a little complicated but it is necessary to set out many of them in order to understand the contentions in this appeal.

(3.) The plaintiff and the 1st defendant are brothers. They effected a partition of their properties about July 1897. In that partition, about 34 items of landed properties (among other properties) were divided between the plaintiff and the 1st defendant, the plaintiff obtaining for his share certain specific properties out of the 34 properties and the 1st defendant the remaining properties. In June 1899, the 1st defendant and the father of the defendants 2 and 3, since deceased, executed a simple bond for Rs. 10,000 in favour of the plaintiff. It has here to be mentioned that though the plaintiff got in the partition of 1897 certain specific properties out of the 34 items of land, all the 34 items had been mortgaged by the 1st defendant before the partition in favour of a third person whom I will call the mortgagee. This mortgagee brought suit No. 66 of 1905 on the file of the Kumbakonam Sub- Court for sale of those 34 items against both the plaintiff and the 1st defendant; the plaintiff (without protest apparently from the 1st defendant) seems to have raised the plea in the mortgagee s suit that one half share in all the 34 items belonged to him and that the said half share was not liable for the mortgage as the sum advanced by the mortgagee to the 1st defendant was not a debt incurred by the 1st defendant for the benefit of both the plaintiff and the 1st defendant. The plaintiff, if the debt was not a proper debt, might have had those particular items (out of the 34 mortgaged items) which fell to the plaintiff s share released from liability under the mortgage, but, as I said above, he seems to have attempted to get one half share in every one of the 34 items released from the mortgage. One other complication in the case is that in January 1903, the 1st defendant seems to have sold some of those properties which fell to his share (out of the 34 properties) to the plaintiff for Rs. 13,000 and asked the plaintiff to pay that Rs. 13,000 to the mortgagee in part satisfaction of the mortgage debt.. The plaintiff had failed to pay that Rs. 13,000 to the mortgagee and hence the mortgagee brought his suit No. 66 of 1905 to recover the entire amount due under his mortgage by sale of all the 34 properties.