KUMBAKONAM MUTUAL BENEFIT FUND LTD Vs. CRAMASWAMI

JUDGEMENT

(1.) These two appeals are from a judgment of Bell, J., delivered in a second appeal. Appeal No. 51 of 1945 has been filed by the holder of a mortgage decree and Appeal No. 53 of 1945, by the purchaser of the property at the sale held by the Court in execution.

(2.) The mortgage was executed by a Hindu father on behalf of himself and |nis three minor sons. They constituted a joint family. On the 24 June, 1935, in O.S. No. 91 of 1935, of the Court of the District Munsiff of Kumbakonam, the mortgagee obtained a preliminary decree and on the 13 November, 1935, a final decree. The price realised for the hypotheca in execution fell short of the amount due under the decree by Rs. 308-4-0. On the 7 January, 1941, the decree-holder filed an application for a personal decree against the father and his two surviving sons, limited so far as the sons were concerned to their interests in the family estate. One of the sons had died before the application was filed. One of the two surviving sons (the first respondent in these appeals) was a minor. The decree-holder experienced some difficulty in serving the first respondent and on the 30 July, 1941, he filed a memorandum indicating his intention of withdrawing the application for a personal decree so far as the first respondent was concerned. It would appear that by this time the first respondent had become a major. As the result of the decree-holder having decided to withdraw the application against the first respondent a personal decree was passed against the father and his other surviving son, limited, of course, so far as the latter was concerned to his interests in the family property.

(3.) The decree-holder then applied to execute the personal decree by the attachment of certain family properties. The attachment was ordered and the properties were in due course sold. Within a month of the sale the first respondent applied to the Court of the District Munsiff of Kumbakonam for an order setting aside the sale in so far as it affected his one-third share in the properties. The District Munsiff dismissed the application on the ground that the pious obligation rule of Hindu Law applied. The first respondent appealed to the Subordinate Judge of Kumbakonam without success. The Subordinate Judge held that the case was governed by Krishnan V/s. Sami . The first respondent then appealed to this Court. The appeal was heard by Bell, J., who considered that the governing authority was Venkataranga Reddi V/s. Chinna Sithamma and consequently allowed the appeal, but he gave leave to appeal.