RAMAN PANDITHAN Vs. SATHA CUDUMBAN

JUDGEMENT

(1.) The father of the defendants sold certain family properties to the plaintiff in 1894. The vendor died in 1904. The defendants sued the plaintiff in 1905 for possession on the ground that the sale was not binding on them. The litigation went up to the High Court and it was there decided that the sale qua the father s share was good, but that the defendants 5/6th share in the properties was not bound by it. With the consent of all the parties, the defendants were allotted their 5/6th share as on partition.

(2.) The present suit is to recover 5/6th of the consideration paid for the sale of 1894, on the allegation that the consideration failed to that extent, when the High Court held that the plaintiff was entitled to only 1/6th of the properties sold. The basis of the suit is the pious obligation of the defendants to discharge their father s debt which was neither illegal nor immoral. The courts below have decreed the claim.

(3.) Before dealing with the main point argued, we may dispose of some of the objections to the form of the decree. It was argued that if the foundation of the action is the failure of consideration, the plaintiff should not be allowed to retain 1/6th of the property, as if it represented a sixth of the debt, but that its value should be deducted from the debt advanced to the father. The analogy of Sections 14 and 15 of the Specific Relief Act may assist this contention. But the point not having been raised in the courts below and the materials available for apportioning the value not being available we must decline to consider the question.