VEERA SOORAPPA NAYANI Vs. ERRAPPA NAIDU

JUDGEMENT

(1.) In this suit the plaintiff-appellant seeks to establish his right to the Bagalur Poliem in the Salerh district, and to recover possession of it with mesne profits. The plaintiff is the eldest son of the late Poligar, who died in 1885. The Poliem was sold in execution of a mortgage decree obtained against the late Poligar in Original Suit No. 15 of 1875, and was purchased in February 1881 by the mortgagee, the late Kotha Nunjappa. The defendants Nos. 2 to 14 are the representatives of this Nunjappa. The first defendant (who is a younger son of the late Poligar by a junior wife) purchased the Poliem in 1893 from the heirs of Kotha Nunjappa. Thus, the title of all the defendants depends on the validity and effect of the execution sale in 1881, and it is this which the plaintiff attacks. His case is that the Poliem was impartibly and inalienable by custom and by reason of its character as a military tenure, that the late Poligar, therefore, had only a life interest in it, that only this interest could have passed and did pass to the defendants in consequence of the sale in execution, and that on the death of the late Poligar in 1885 the Poliem passed to him (the plaintiff) as his eldest son.

(2.) In the lower Court the plaintiff also pleaded that the sale was in execution of a decree obtained for a debt contracted for immoral purposes, and was, therefore, not binding on him, but there was no evidence to support this plea and it was abandoned in this Court. In point of fact the debt was mainly one that had been decreed in Original Suit No. 2 of 1837 against the plaintiff's grandfather; long before the birth of the plaintiff and to a small extent it was money borrowed by the plaintiff's father for payment of peshcush due on the estate. As to the contention that the Poliem was by custom and by reason of its tenure inalienable, we may say that there is no sufficient evidence to prove any such special custom or that the estate was held on condition of military service and was therefore inalienable. The Subordinate Judge has dealt with these questions fully and we concur in his conclusions. He has, moreover, shown that in the past considerable alienations have, in fact, taken place without objection on the part of those who would have been interested to object if the estate had been inalienable.

(3.) In these circumstances even if the plaintiff as a son were a coparcener with the late Poligar, his interest would be liable to be sold. But it is now settled law Sartaj Kuari V/s. Deoraj Kuari I.L.R. 10 All. 272 and the Pittapur case I.L.R. 22 Mad. 383 that the owner for the time being of an impartible estate, such as this Poliem admittedly has the full proprietary title, and the son has no such coparcenary interest by birth as he would have under the mitakshara law in ordinary ancestral property.