GANGI AMMAL Vs. GOVINDA PADAYACHI

JUDGEMENT

(1.) This suit was instituted for the purpose of recovering certain property after setting aside a sale deed. One Muruga Padayachi executed a deed of sale on the 28 October, 1905 in favour of his sister's grandson Boorasamy. Eleven years after this transaction Muruga Padayachi's widow seeks to set aside the sale on the ground that it was conditional upon the vendee fulfilling certain terms, that there was default on his part and that consequently the sale was inoperative. It is said that one of the conditions was that the vendee should marry an infant daughter of Murugan. Another condition is said to be that the vendee's father should discharge certain debts binding upon the property. In regard to the first condition, the District Judge has held that the marrying by Boorasamy of the daughter of Murugan was not a condition precedent, and with this finding of fact I cannot interfere in Second Appeal. In regard to the second condition, the debts referred to are those covered by Exs. II and A. So far as Ex. II is concerned, the lower appellate Court has arrived at the finding that it was fully discharged. Ex. II is a deed of mortgage, and on it there is an endorsement by Govinda Padayachi the father of Booraswami, which shows that Rs. 392 were paid by him on the 9 April, 1906 towards the deed in question. The balance of the amount due under Ex. II was discharged by the execution of a hypothecation bond on the 1 August, 1913 by Booraswami himself, but it is argued that the discharge of the debt by the vendee is no compliance with the condition. I do not sec how it can be said that, when there is payment of the debt and discharge of the mortgage, there has been no compliance. It was intended by the vendor that the debts should be paid, and it would be strange to hold that it was not his desire that, if the debt was paid by the vendee himself, the property should not become his absolute property. As regards the second debt, the District Judge has also held that the plaintiff has failed to prove that the first defendant Govinda Padayachi had not paid Rs. 100 which was the amount which he was directed to pay by the sale deed.

(2.) Apart from these findings of fact, I think the conclusion of the District Judge is correct, namely that the term that the debts should be paid is not a condition precedent to the vesting of the property in the vendee. The translation before me of the material portion seems to be inaccurate. The correct rendering of the concluding part of Ex. I, the sale deed is; The debts shall be discharged and the minor Booraswami may hold and enjoy the undermentioned lands exclusively with power to alienate by way of gift, exchange, sale, etc. " It is perfectly clear that the discharge of the debt is not a condition precedent to the vesting of the property in Booraswami.

(3.) The last argument advanced by Mr. P. R. Ganapthay Iyer, the learned Vakil for the appellant, is that the sale deed was taken in the name of a minor and that the transaction is therefore void. I must say in this connection that this contention was given up when the appeal was argued before the learned Subordinate Judge who made the order of remand, and I do not think it is open to the appellant now to raise the point. No doubt this is merely a question of law, and if for the purpose of advancing justice, it would be necessary to allow the appellant to raise afresh a question of law in Second Appeal, I shall not have the slightest hesitation to permit him to do so, but, in this particular case, the object of the contention is to defeat a just claim by a technicality, and I do not think I would be justified in allowing a contention of this kind to be put forward for the first time here when it was expressly given up at .an earlier stage. However, in view of the long argument that was advanced by Mr, Ganapathi Iyer, I may state what my view on this matter is.