R KRISHNAMOORTHY IYER Vs. RNATARAJA IYER

JUDGEMENT

(1.) The appellant unsuccessfully sued for partition and separate possession of a fourth share of the properties described in schedule A to the plaint and a half share in the properties described in schedules B and C together with past and future profits and certain minor reliefs to which no specific reference is necessary. The relevant relationships are admitted and may be shortly stated as follows. There were two brothers Venkatarama Aiyar and Dharma Ayyar. Venkatarama Ayyar left two sons, Ramaswami Ayyar and Lakshmana Ayyar. Ramaswami Ayyar died on the 17 July, 1931, leaving two sons, the first defendant Nataraja Ayyar and the plaintiff Krishnamurthy Ayyar. Lakshmana Ayyar was the 109 defendant. Dharma Ayyar had a son Subramania Ayyar whose son is Thiagaraja Ayyar, the 4 defendant. The family originally belonged to a village called Thozhudur in Tanjore district. On the 24 August, 1927, Ramaswami Ayyar and Lakshmana Ayyar divided their properties where by the former got for his share lands in the villages of Kolappad, Thethakudi and Mutharasapuram and a house in Kolappad. On the 10 of July, 1929, Ramaswami Ayyar sold the Kolappad lands and the house for Rs. 99,000 to one Ramachandra Naidu. It is common ground that about Rs. 30,000 out of it was utilised for the discharge of debts. Nataraja Ayyar who joined in the sale deed as an adult was then aged about 19 or 20. The plaintiff however on whose behalf the sale deed was executed was a minor, and it was therefore stipulated that the vendee should execute a promissory note in favour of the plaintiff for Rs. 33,000 with interest at six per cent per annum, that the amount should be payable to the plaintiff on his attaining majority and on his executing a deed ratifying the sale or earlier if properties of the value of Rs. 33,000 should be purchased for the benefit of the plaintiff and the vendee is given adequate security against the possible claim of the plaintiff after he attained majority. It is not quite clear as to how the balance of about Rs. 36, 000 was collected by Ramaswami Ayyar and in fact this is one of the several dark patches in the case. It is however common ground that that amount was collected somehow and was utilised mostly for the expenses of the marriage of a daughter and for other purposes binding on the family leaving even according to the plaintiff's first witness only Rs. 6,000 or Rs. 7,000 by the time of Ramaswami Ayyar's death. P.W. 1 deposes that the wedding of Ramaswami Ayyar's daughter cost as much as Rs. 15, 000 or Rs. 16,000 while the fourth defendant who was examined as D.W. 5, states that a sum between Rs. 8,000 and Rs. 1 0,000 was spent and not Rs. 15,000. This however is immaterial.

(2.) With this short family history as the background it will now be convenient to deal separately with the claim in respect of each of the plaint schedules. First as to A schedule properties which are all in Thethakudi village

(3.) On 30 November, 1931, two agreements (Exs. D-1 (a) and D-2 (a) were executed between the first defendant for himself and as guardian of his undivided younger brother, the plaintiff on the one hand and the second defendant on the other. By Ex. D-1 (a) the first defendant agreed for himself and his younger brother to sell to the second defendant their half share out of 211 acres 15 cents of land in Thethakudi village including wet and dry lands for Rs. 13,000. Under Ex. D-2 (a) the second defendant undertook to sell to the first defendant and the plaintiff lands of the total extent of 140 acres 71 cents including wet and dry lands in the village of Thozhudur for Rs. 55,350. On 4 January, 1932, the sale deeds Exs. D-1, and D-2 were executed in pursuance of Exs. D-1 (a) and D-2 (a). Notwithstanding that the documents were drafted as sale deeds there is no doubt that the transaction was in substance a combination of an exchange and a credit purchase whereby while the properties in Thethakudi and Thozhudur changed hands a heavy payment had to be made by the first defendant and the plaintiff to the second defendant or for his benefit in the manner set out in Ex D-2. Apart from the Rs. 13,000 which was the consideration for Ex. D-1 and which was to be adjusted against the price of the Thozudhur lands sold under Ex. D-2, Rs. 1,000 was paid in cash by Nataraja Ayyar, Rs. 3,064-4-0 was adjusted towards a promissory note executed by the second defendant in favour of the first defendant and the plaintiff. The first defendant executed a promissory note in favour of the second defendant for Rs. 1,935-12-0 and the balance of Rs. 36,350 was directed to be paid by the first defendant in discharge of the debts of the second defendant set out in a schedule attached to the sale deed. These debts included an amount of Rs. 12,000 due by way of principal and interest on a mortgage executed in favour of the Tanjore Permanent Fund by the second defendant on the 19th March, 1931, over the properties covered by the sale deed Ex. D-2. There is no doubt that the parties went into possession of the properties which they respectively got under Exs. D-1 and D-2. Nataraja Ayyar was unable to pay the debts which he had undertaken to discharge except to an inconsiderable extent with the result that there were a number of suits by the second defendant's creditors against the first defendant and the plaintiff most of which were decreed against the first defendant alone and the rest both against the first defendant and the plaintiff. The Tanjore Permanent Fund obtained a decree on foot of its mortgage in O.S. No. 20 of 1936 on the file of the Court of the Sub-ordinate Judge, Tiruvarur, against 60 acres 20 cents out of the properties covered by Ex. D-2 and sold them away in the execution of that decree. The second defendant himself obtained a decree in O.S. No. 38 of 1941 on the file of the Court of the District Judge of Negapatam for a portion of the purchase money and subject to the charge for the amount of Rs. 6,924-7-6 due under that decree, the Official Receiver, East Tanjore sold the right, title and interest of the first defendant in the rest of the Thozhudur lands by the sale deed Ex. P-5 dated 30 September, 1943, the first defendant having been adjudicated insolvent on 18 November, 1936, in I.P. No. 9 of 1936 in the Court of the Subordinate Judge of Tiruvarur.