BATHAI BAGYALAKSHMI AMMAL Vs. THOPPAI BAPPU AIYAR (DIED)

JUDGEMENT

(1.) The appellant here was the 20 defendant in a partition suit and is the daughter of the respondent (21 defendant in the trial Court). By respondent we refer to the original respondent who is now dead and is represented by his legal representatives, the second and third respondents. The 2oth defendant was the wife of the third defendant, one of the coparceners. She was in the suit claiming certain items of property as her own and her father the respondent, was claiming certain other items of property as his own. The trial Court disallowed the claims of both the appellant and the respondent. They joined together in appealing to this Court against that decision. The appeal was Appeal No. 101 of 1937. In their memorandum of appeal there is an assertion that items 10 and 11 of Schedule C, with which we are now concerned, were purchased with the stridhanam funds of the present appellant. These two items are usufructuary mortgage rights and it is common ground that the lands covered by these usufructuary mortgages were being managed by the respondent for the appellant. It is also common ground now, though the fact was not revealed during the proceedings in the partition suit and the appeal therefrom, that the present respondent purchased the equity of redemption in respect of these two items from the owner, a third party. It is alleged that the mortgage covering these two items was redeemed by the payment of the amount due to the husband of the present appellant the receipt being Ex. P-6 dated the 20 March, 1935. That allegation is denied by the appellant and the appellant alleges that the purchase of the equity, of redemption was made on her behalf with her money by her father, the respondent. These allegations regarding the ownership of the equity of redemption and the discharge of the mortgage were not placed before the Court either at the trial or in the appeal in the partition suit.

(2.) When the. matter was pending in appeal before this Court, there was a com-promise between the present appellant and the members of her husband's family The respondent was not a party to that compromise. The result of the compromise was a decree declaring that the appellant was entitled to items 10 and 11 of schedule C and also to other items with which we are not now concerned. There is nothing in this decree to indicate that the appellant was not in possession of the items decreed to her or that she was entitled under the decree to get possession from anybody else. The respondent prosecuted his own appeal after this compromise and he failed.

(3.) After the termination of the proceedings in appeal, there seems to have been disputes between the appellant and the respondent. The respondent had filed a suit on behalf of the appellant claiming rent for these lands from the tenant and got a decree, and in a second suit for possession he had been appointed receiver While he was holding possession of these lands as receiver, the appellant filed an execution petition in which she claimed possession of the lands by virtue of the compromise decree in the partition suit. She obtained permission frorn the Court which appointed the receiver to execute her decree against the receiver, and of this application for permission the respondent certainly had notice. He had, however; no notice of the main execution petition, and the appellant without opposition succeeded in getting delivery of possession. Thereupon the respondent filed an application for re-delivery and it was in the proceedings for re-delivery that all the facts regarding the purchase of the equity of redemption and the allegation of the discharge of the usufructuary mortgage and the further allegation that the purchase was benami for the appellant, were for the first time brought to the notice of the Court.