BALASUNDARACHARI Vs. AVKANNIAPPACHARI

JUDGEMENT

(1.) (After setting out the pedigree the judgment continued). In this suit the plaintiff asks that a sale held in pursuance of a decree passed by this Court should be set aside so far as his interest in the property sold is concerned. The decree was obtained by defendant 8 on the footing of a mortgage executed in his favour by Munuswami Achari, Arunagiri Achari ( defendant 4) and Vedagiri Achari (defendant 5). At the sale held defendant 9 purchased the property in question. I must preface my judgment by saying that the only question which I am asked to try is, whether this sale is binding upon the plaintiff. Defendant 9, supported by defendant 8, is contesting the suit. The other defendants either do not appear to defend the action or side with the plaintiff.

(2.) The principal point raised in the case is that Kanniappa, the father of the plaintiff, separated from the family after executing a release-deed dated 12 February 1912 and that the result of that transaction was that the entire branch of Kanniappa, including his sons, became severed from the rest of the family which continued to be joint. It follows from this contention that the plaintiff had no interest in the property mortgaged or subsequently sold. If I accept this argument the plaintiff is bound to fail. It is urged for the plaintiff that the release- deed was a sham and that his father nevertheless continued to be a member of the joint family. In the alternative, it is contended for him that in any event the release did not and could not affect the sons of Kanniappa and that the latter continued to be members of the joint family although their father severed his connexion with it.

(3.) One of the questions raised, as I have said, is, Was the release-deed intended to be an effective document or was it a mere sham? I shall assume in favour of the plaintiff that it was a sham and shall first proceed to deal with the case on that footing. The case of the plaintiff is put in this way. Kanniappa was incurring debts and it was considered necessary to take a release from him only with the object of preventing third parties from lending him moneys. The purpose of the deed was to deceive the public and not to separate Kanniappa. Whether this be a fact or not, let us look at the state of things as they existed in 1921. Kanniappa would, in the usual course, have been the manager, but he must be deemed to have renounced that right in favour of the next eldest member. Let me state the rule which I wish to apply in the form of an illustration. If A. has two younger brothers B and C, A certainly can renounce his right to manage. in favour of B and A's minor sons will be bound by that act and they cannot be heard to say that B is not thereafter the manager. The purpose of the deed, on the plaintiff's showing, was to deceive the public into thinking that Kanniappa did not continue a member of the coparcenary. He could not, consistent with the deed, profess to act as manager, for that would be to defeat the very object of the transaction. It, therefore, seems to me that the management in 1921 devolved upon the junior member Arunagiri and, as I have shown, he was one of the executants of the mortgage, which cannot, therefore, be impeached on the ground that the executant had no authority.