KUPPUSWAMY Vs. RASAPPA CHETTIAR

JUDGEMENT

(1.) This is an appeal by defendants 7 and 8 on whose behalf the suit properties had been purchased from defendant 1 by a sale-deed dated 15 November 1928. The suit was instituted for recovery of two sums of money from defendant 1 and by sale of the suit properties and defendants 7 and 8 were impleaded as subsequent purchasers. In respect of one item, namely, a sum of Rs. 2,500, the plaintiff claimed that he was entitled thereto under a mortgage-deed, Ex. A dated 20 September 1921, executed by defendant 1 in favour of the plaintiff. In respect of the other sum, the plaintiff claimed that according to the terms of a release deed which formed part of the settlement of accounts between himself and defendant 1 in respect of a partnership business carried on by them, defendant 1 had undertaken the liability to pay off certain debts but on account of his default the plaintiff was obliged to pay the same and that according to the terms of that arrangement he was entitled to a charge on the suit properties for this amount also.

(2.) Defendant 1 was ex parte. Defendant 2 who was the father of defendants 7 and 8 filed a written statement setting forth various defences and the same was adopted by the appellants. One of the contentions raised was that Ex. A does not represent a genuine transaction but it was merely a nominal or sham document. This is the subject matter of the first issue in the case. Another contention was that the arrangement by which the partnership between the plaintiff and defendant 1 was said to have been dissolved as per terms of the release deed, Ex. B, was not intended to be acted upon and that the plaintiff was therefore not entitled to claim any right on the basis thereof and his only remedy was to sue for dissolution of partnership and for the taking of the partnership accounts. This forms the subject matter of the third issue in the case. The evidence bearing on these points has been very fully discussed in the judgment of the lower Court and as we agree with its conclusion, it is not necessary to refer to the evidence at great length. It is established that several notices passed between the plaintiff and defendant 1 before the arrangement evidenced by Ex. B was brought about. (Vide Ex. K series.) Defendant 1 as D. W. 1 also admits that he sent Ex. M suggesting that the matter should be settled by mediation. P.W. 4 is one of the mediators who brought about the arrangement; and though on one occasion defendant 1 thought fit to say that Ex. B was nominal he has admitted in another deposition that from the date of Ex. B the plaintiff had no interest whatever in the business and that he has acted on the basis that the partnership had been dissolved. Even in his present evidence, he does not say that Ex. B was nominal; he only suggests that the figures therein given were tentative and subject to revision if he was unable to collect all the outstandings that he took over at the time. This is very different from the plea that it is a nominal arrangement. It is significant that while the plaintiff who was examined first gives very full details as to the circumstances under which the terms of Ex. B were settled, the defendant 1, who was examined several days later has not been put a single question contradicting these statements of the plaintiff. The points raised by issues 1 and 3 are obviously frivolous pleas.

(3.) With reference to the grievance which defendant 1 makes of the inequality in. the debts respectively allotted to himself and the plaintiff, it is sufficient to say that Exs. II and II-A, the schedules on which the allotment has been made in Ex. B are in the handwriting of the defendant himself and it is defendant 1 who presented Ex. B for registration. We have therefore no doubt that Ex. A is true, valid and supported by consideration and that the suit properties are liable for the claim under that document.