RAMANNA CHETTIAR Vs. KMANICKAM CHETTIAR

JUDGEMENT

(1.) This is a second appeal by the plaintiff mortgagee, against so much of the decree of the Courts below as refused relief to him against the B scheduled properties in the hands of defendants 2 to 4. Under Ex. A, dated 17 August 1919, the father of defendant 1 acting for himself and on behalf of his minor son, the present defendant 1, mortgaged 1 acre 82 cents of lands constituting R.S. No. 199/1. The document makes no reference to his being a member of a joint Hindu family with anybody else except his son nor does it purport to mortgage any Share in joint family property. It merely states that the patta for the morgtgage property stands in the names of himself and others and that the property is in his enjoyment. It however turned out that he had co-parceners and in a partition suit between the co-parceners the 1 mortgagor was allotted only 51 cents in S. No. 199/1. He got other properties for his share and amongst them S. No. 199/2 which adjoins the mortgage prosperity. This is the property specified in the plaint B schedule, S. No. 199/2, and certain other properties were sold by the mortgagor under Ex. I to defendant 2 in 1924 and defendant 2 sold S. No. 199/2 to defendants 3 and 4 in 1926. The present suit has been brought by the plaintiff against defendants 1 to 4 claiming that the mortgage money may be realised by sale of the 51 cents allotted to his mortgagor in S. No. 199/1 and also by sale of the 1 acre 53 cents in S. No. 199/2. The Courts below have given a decree for sale of the 51 cents in S. No. 199/1 but dismissed the claim against S. No. 199/2. The second appeal relates to this portion of the claim.

(2.) Some questions were raised before the trial Court as to whether some of the transfers above set out were real, bona fide and for consideration. If by operation of any rule of law S. No. 199/2 becomes subject to a mortgage in favour of the plaintiff, I do not see that the doctrine of bona fide purchaser for value has any significance in the case. If the plaintiff's claim against this item of property can be put only as something in the nature of a charge or an equitable right, the question of bona fides and consideration may become material. The District Munsif based his conclusion in respect of this item of property on the ground that there was no sufficient evidence before him to prove that S. No. 199/2 fell to the share of the mortgagor in lieu of the properties hypothecated under Ex. A. For some reason the partition suit decree was not produced before the trial Court and apparently this accounts for that remark. The partition decree was produced before the District Court and there was accordingly no difficulty at that stage in determining what items of property fell to the mortgagor's share in the family partition.

(3.) I am not quite sure whether Mr. Viswanatha Sastri is right in his contention on behalf of the respondents that the plaintiff relied upon the allegation that S. No. 199/2 was specifically given to the mortgagor in lieu of his share in S. No. 199/1. The translation is somewhat misleading but the relevant paragraph of the plaint, read as a whole in the vernacular, seems rather to allege that this is the way in which S. Nos. 199/1 and 199/2 were divided between the mortgagor and his nephews. Leaving this question alone, the point still remains whether and how far the theory of substituted security enunciated by the Privy Council in Byjinath Lall V/s. Ramoodeen Chowdhry (1876) 1 I.A. 106 (P.C.) can avail the plaintiff in the circumstances of the present case.