KRISHNA AYYAR Vs. MUTHUKUMARSAWMIYA PILLAI

JUDGEMENT

(1.) Ramalingam Pillai, the deceased father of the plaintiff, a minor, obtained from the first defendant on the 21 June 1896, a bond for Rs. 5,000 on the hypothecation of certain lauds, to which the first defendant and the two sons of his deceased brother, members of a joint family, were entitled, the debt being recited to be one binding on all the members subsequent to the mortgage, the first defendant became by purchase from one of his nephews entitled to a two-thirds share in the joint property instead of to one-half as originally. Of the other defendants, the second to the seventh inclusive, are impleaded as persons entitled to the equity of redemption in some or other of the properties hypothecated to the plaintiff, they having acquired such interest in Court sales held in execution of decrees against the first defendant, and the eighth and the ninth defendants are holders of prior mortgages on the properties comprised in the plaintiff's mortgage. In the present suit the plaintiff prayed for a decree against the first defendant and only against his two thirds share of the mortgaged property, excluding the third share belonging to first nephew who had not parted with his interest, it being stated in the plaint that the plaintiff apprehended there were difficulties in establishing that the debt was binding on that nephew's share.

(2.) The Subordinate Judge overruled the objection raised by the appellants (defendants Nos. 2 to 5) to the frame of the suit in so far at the nephew's third share was excluded, and granted a decree to the plaintiff as prayed for.

(3.) It was said on behalf of the appellants that Ramalingam Pillai being the maternal uncle of the nephew, the object of the exclusion of his share from the suit was to throw the entire debt upon the share purchased by the appellants and save that of the nephew from liability to the debt to which it was justly subject. The evidence which the nephew may produce against the condition that his one-third share is bound by the debt not having been taken, no final conclusion on this point can be arrived at, and though the evidence on which the appellants rely tends to support their contention that the nephew's share also is bound yet the matter cannot be said to ha free from doubt. Consequently, it is not to be taken that the next friend of the plaintiff in refraining from impleading the nephew and from litigating the matter with him was acting otherwise than in the interests of the plaintiff.