SREEMAN RAJU PATHAYAM VEERASURAPPA NAYAMVARU Vs. ERRAPPA NAIDU

JUDGEMENT

(1.) In this suit the plaintiff appellant seeks to establish his right to the Sagalur Palayam in the Salem 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 palayam was sold in execution of a mortgage decree obtained against the late Poligar in 0. St No. 15 of 1875; and was purchased in February 1882 by the mortgagee, the late Kotha Nanjappa. The defendants Nos. 2 to 14 are the representatives of this Nanjappa. The 1 defendant (who is a younger son of the late Poligar by a junior wife) purchased the Palayam in 1893 from the heirs of Kotah Nanjappa. Thus the title of all the defendants depends on the validity and effect of the execution sale in 1883, and it is this which the plaintift attacks. His case is that the Palayam was impartible 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, 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 Palayam 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 declared in O.S. 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 the plaintiff's father for payment of peishcush due on the estate. As to the contention that the Palayam was by custom and by reason of its tenure inalienabte, 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 liave 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 co-parcener 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 A. 272 and Sri Baja Bow Venkata Surya Maheepate Ramakrishna Rao Bahadur V/s. The Court of Wards I.L.R. 22 M. 383 that the owner for the time being of an impartible estate such as this Palayam admittedly has 4;he full proprietary title, and the son has no such -coparcenary interest by birth as he would have under the Mitak-shara law in ordinary ancestral property.