DAIVA AMMAL Vs. SELVARAMANUJA NAYAKAR

JUDGEMENT

(1.) Defendant 1 is the appellant. The appeal arises out of a suit instituted by the plaintiff for a declaration that the decree in O.S. No. 55 -of 1922 on the file of the Additional Sub-Court of Tinnevelly and execution proceedings therein, the decree in O.S. No. 48 of 1915 on the file of the Sub-Court of Tuticorin and the decree in O.S. No. 35 of 1916 on the file of the Tinnevelly Sub-Court are not binding on him and his half share of the suit properties and for partition of the said half share by metes and bounds and for delivery of the same to him with future profits and coats. The lower Court gave the plaintiff a declaration that the decree in O.S. No. 55 of 1922 was not valid and binding on him and his half share in the plaint first and third schedule properties and in item 15 of the 2nd schedule. In this appeal we are concerned only with the first and third schedule properties. The result of the decree is, in the words of the learned Judge, the parties will be relegated to the position which they occupied before the decree in O.S. No. 55 of 1922 was passed. No special declaration was made with respect to the decrees in O.S. No. 48 of 1915 and O.S. No. 35 of 1916 as the declaration made with respect to O.S. No. 55 of 1922 renders reliefs as will appear from the facts with respect to them unnecessary. The present appeal has been filed by defendant 1 and since she died during the course of the appeal her legal representatives are the appellants before us.

(2.) The facts are these: The plaintiff and defendant 8 are the sons of one Veerappa Naick who died on 3 November 1912. At the time of his death defendant 8 was about 14 years old and the plaintiff was aged nearly 4 years. Two days before his death, on 1 November 1912, Veerappa executed a will Ex. 4. In it he appointed Krishnaswami Naicker, alleged to be either a son-in-law of the deceased or his nephew, as their guardian. Under the will one share of the properties was given to him and the other two shares to his minor sons. Krishnaswami Naicker was also asked to conduct as he likes "the cotton business which we are conducting in our family in common and other kinds of business which could be done in future for this family and all other affairs" and to add "the amounts of loss and profit derived therefrom to the family common properties." He was also empowered to "collect the outstandings due in connection with family and due according to his discretion if any sales have to be made for the dues of the family." It may be mentioned here that the trade referred to in the will is a partnership business carried on by Veerappa (the father of plaintiff and defendant 8) and Krishnaswami Naicker (the guardian under the will) along with two strangers Ramaswami Naicker and Muthukrishna Naicker under the vilasam of T.K.B.M. This appears from Exs. 20 and 20-A, books of the South Indian Bank Ltd., Tuticorin branch. From the recitals in Ex. 3, a promissory note, which will be referred to later executed after the death of Veerappa, it would appear that the firm consisted of Krishnaswami Naicker, the sons of Veerappa, and T. Ramaswami Naicker. The names of Veerappa and Muthukrishna Naicker have dropped out. There is no evidence as to whether his business was started by the deceased Veerappa himself or whether it was the family business which was being continued by him.

(3.) The main declaration asked for in the suit is, as already stated, a declaration that O.S. No. 55 of 1922 is not valid and binding on the plaintiff's half share of the suit properties. That suit arose out of Ex. IT, a hypothecation bond executed by Krishnaswami Naicker over the plaint first and third schedule properties for himself and as guardian of his son and the plaintiff in favour of one Kuppu Reddiar on 4 February 1917 for Rs. 22,000. The amount under this document was borrowed to discharge four debts: (1) Rs. 5,350, a decree-debt due to Lakshmana Chettiar, the plaintiff in O.S. No. 35 of 1916 (2), Rs 3,150, a promissory note debt due to one Manickavachaka Adaniar, the debt having been incurred to discharge the decree in O.S. No. 48 of 1915 on the file of the Subordinate Judge's Court of Tuticorin; (3) Rs. 13,490 under a promissory note executed for Rs. 10,000 on 24 February 1914 by Krishnaswami Naicker in his individual capacity and as guardian of the plaintiff and defendant 8 who were then minors; and (4) a sum of Rs. 10 received in cash on several occasions. Item 2 and 3 of consideration were left with the mortgagee for discharging those debts and it has been proved that those debts have been discharged by him. The first item of Rs. 5,350 was received from the mortgagee by Krishnaswami Naicker and the debt raised to pay off the decree amount in O.S. No. 35 of 1916 has been discharged with that sum. All these facts are admitted.