NATESA PATHAR Vs. GANAPATHI SUBBA PATHAR

JUDGEMENT

(1.) The plaintiffs who are the sons of the 4 defendant have brought this suit for partition of their 4|5ths share of the plaint property on the ground that their shares in it were not conveyed to the 1 defendant under the sale in execution of the decree against their father. The District Munsif decreed the plaintiff's suit and the 1 defendant's appeal to the Subordinate Judge's Court was dismissed. He preferred a second appeal to the High Court and it was dismissed by Spencer, J., and he has preferred this Letters Patent Appeal against the decision of that learned Judge. The Lower Courts as well as Spencer, J., have on a consideration of the evidence in the case held that the execution and sale did not convey to the appellant the interest of the plaintiffs in the suit property and that what was bought by him was only the share of the 4 defendant.

(2.) The contention of Mr. Varadachariar for the appellant is that where the sale papers are unambiguous the Court should give effect to their plain meaning as it appears on the face of them and should not take evidence in order to ascertain what was intended to be sold by the execution creditor and it is only where the sale papers are ambiguous or capable of more than one meaning that the Court should ascertain what was intended to be and was sold by a reference to documents and circumstances connected with the suit, decree, execution proceedings and sale.

(3.) The prayer in the execution application, Ex. B-4, is The plaintiff prays that the immoveable property belonging to and enjoyed by the 1 defendant herein described below be attached... on a date to be fixed by the Court, that the property be sold, etc.