K S NATESA AIYAR Vs. SAHASRANAMA AIYAR

JUDGEMENT

(1.) I would state the facts of this case fully as I am not satisfied with the treatment of the case by the Lower Courts. Defendant was the stakeholder of a chit fund, and, for the due performance of his obligations in connection with the chit transactions, he executed a kootchit deed, dated 23 March, 1914, mortgaging two items of his property. In item 2 he had originally an ancestral property only 47 cents, but the other 47 cents, which at first belonged to his brother Kuppuswami Aiyar, were purchased in 1910 by a sale-deed, Ex. I (a) and the sale-deed stands in the name of defendant 2, son of defendant 1, being minor by his mother as guardian. Thus in 1914 he was in possession of 94 cents of this item and this was mortgaged by Ex. A. The plaintiff is one of the subscribers to the chit and he bid at one of the auctions in 1918, by which he became entitled to the suit amount. He, therefore, brings the suit to recover the amount by sale of the property mortgaged under Ex. A. Defendants 3, 4 and 5 are the purchasers of item 2 subsequent to execution of Ex. A, that is under Ex. 1, dated 20 April, 1915. The District Munsif's judgment is somewhat perfunctory, because it does not state what the defences of the defendants are in this case. As a matter of fact defendants 1, 2, 3 and 4, all have filed written statements, and reference is made to these written statements. However, I had them all read out before me. Defendant 1 did not appear at the time of the trial. The District Munsif framed two issues "(1) To what amount is plaintiff entitled? (2) What are the properties subject to the charge?"

(2.) Issue 1 was framed with reference to some questions raised by defendant 1 as to the exact amount due to the plaintiff. Issue 2 was raised with reference to the plea of defendants. 3 and 4, namely (1) that Ex. A will not be binding on the half-share of Kuppuswami Aiyar which was purchased in the name of defendant 2 in 1910 and which was afterwards sold to defendant 4 in 1915; (2) that the mortgage was also not binding upon the son's half-share of the original ancestral property of 47 cents on the ground that it is not made for necessary purposes. The issue might have been made clearer so as to state these points expressly, but however, I find that both the District Munsif and the District Judge discuss these points and these are the points that are argued by the parties throughout. I, therefore, think that nobody has been prejudiced by the frame of the issues.

(3.) The issue 1 is not before me. As to issue 2 the District Munsif found that in 1910 defendant 2 had no property of his own. It is admitted he was a minor. He also observed that there was no evidence to rebut the presumption of Hindu Law that a purchase in favour of the junior members of the family was really a purchase of the family. He also referred to the fact that the father joined in the further sale and he found that the purchase of 47 cents in 1910 was also a joint family property and could not be regarded as deft. 2's self-acquisition.