SETHURAMA AIYAR Vs. RAMACHANDRA AIYAR

JUDGEMENT

(1.) Defendant is the appellant in this second appeal. He purchase a house from two persons Vedathamman and Chinnaswami Iyer by a sale-deed, Ex. A, dated 29 January 1924. They said property was obtained by Vedathammal by inheritance and her father Chinnaswami Iyer was the next reversioner. On the date of sale one Varadaraja Iyer had obtained a decree in O.S. No. 38 of 1923 on the file of the District Munsif's Court of Valangiman against Vedathammal wherein attachment before judgment of the said property was pending. There was another decree obtained by one Swaminathaier against both Vedathammal and her father Chinnaswami Iyer in S.C.S. No. 1740 of 1928 of the Kumbakonam Small Cause Court and there was also an attachment in the said suit of the said house. Vedathammal and Chinnaswami Iyer filed O.S. No. 83 of 1923 in the District Munsif's Court of Valangiman against the said Swaminatha Iyer for a declaration that the said attachment and sale of the said house were fraudulent and illegal. The sale of the said house to the defendant was for a sum of Rs. 1,000. That was the price, it is stated, fixed for the property. A sum of Rs. 150 was either paid or adjusted towards certain debts and the balance of the consideration, namely Rs. 850, was retained in the hands of the defendant. The litigation of Varadaraja Iyer was recited in the sale deed, and in regard to the said litigation it is stated therein as follows: And, as at the time of the said suit, the under mentioned house was attached before judgment in respect of the said plaint amount, etc., and as appeal would be filed in respect of the said suit, we would receive the amount in the event of our emerging successfully in the said original suit and appeal, and in the event of the said T. Varadaraja Iyer emerging successfully, you yourself should pay and discharge the amounts due under the decree herein.

(2.) Again reference was made to the litigation in the said O.S. No. 83 of 1923 and a similar recital was made. With reference to both litigations it was stipulated thus: If after the complete disposal of both the said proceedings-the original and appeal proceedings-the same are favourable to us, we shall get and deliver to you copies of each Court decree therein and receive the amount relating to each suit on granting a proper written document in respect of the same. If favourable to him, you yourself shall pay the amount through the Court and discharge the same. And in the above matter the sum retained is Rs. 850. No interest need be paid on Rs. 850 retained on being received after the complete disposal of each of the Court proceedings as aforesaid. we are to receive the said amount, Chinnaswami Iyer out of us will receive Rs. 150 and Vedathammal Rs. 700 according to the said arrangement.

(3.) It appears that the decree in S.C.S. No. 1740 of 1928 was adjusted by payment of Rs. 75. So far as Varadaraja Iyer's litigation is concerned, the appeal against the decree in the said suit was unsuccessful. Execution proceedings were taken for the enforcement of the said decree and while they were pending Vedathammal died on 27 September 1926. After the death of Vedathammal the defendant obtained another sale deed in confirmation of the original sale deed from Chinnaswami Iyer on 14 October 1926. Varadaraja Iyer sought to bring the defendant as the legal representative in the execution proceedings for the sale of the property. There was an order in favour of Varadaraja Iyer, but ultimately it was set aside by the High Court in A.A.A.O. No. 27 of 1930: vide Sethurama V/s. Varadaraja 1932 Mad 185. The ground on which it was set aside was that defendant 4 was not the legal representative of Vedathammal inasmuch as Vedathammal had only a limited interest in the property and the defendant can in no sense after her death be said to be her legal representative and the decree obtained by Varadaraja Iyer could not be said to be one which prima facie bound the reversionary interest. The result of that litigation was that the property which the defendant purchased became exonerated from the liability of being sold in execution of the decree obtained by Varadaraja Iyer. The plaintiff obtained a decree in S.C.S. No. 1352 of 1926 on the file of the Small Cause Court of Kumbakonam against Vedathammal and in execution thereof on 26 August 1926 attached the moneys due and payable to Vedathammal by the defendant in virtue of the sale deed and after her death brought her husband as the legal representative and had the debt sold and became its purchaser in court-auction and on the strength of that purchase has filed the suit for the recovery of a sum of Rs. 300 only, waiving the balance. Both the Courts have decreed the plaintiff's claim and defendant has preferred this second appeal.