A KRISHNASWAMI AIYAR Vs. TATHA RAGHAVIAH CHETTY

JUDGEMENT

(1.) This application is made under Order 5-A of the Original Side Rules. These provisions relate to what is known as "third party procedure" and were framed only recently and I understand that this is the Erst application made in this Court under this Order.

(2.) The plaintiff's action is one to enforce a mortgage created by the 1 defendant and the latter claims indemnity as against the 2nd defendant. The facts which according to the 1st defendant give rise to his claim are these : The 2nd defendant is the elder brother of the 1st and they had a sister by name Sitamma. She wanted to help the 1 defendant who was in difficulties and with that object entrusted the 2nd defendant with a sum of Rs. 50,000 directing him to redeem the suit house which was the ancestral house of the 1 defendant and thus free it from the suit mortgage to which it was subject and hand it over to the 1st defendant. The latter who is the applicant asks that the question raised should be determined in this action under these rules and that a decree should be passed in his favour against the 2nd defendant.

(3.) On the facts alleged by the applicant there can be no doubt that the transaction amounts to a trust. This word is thus defined in Section 3 of the Indian Trusts Act: A trust is an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner.