GOPALASWAMI AYYAR Vs. NATARAJA CHETTIAR

JUDGEMENT

(1.) The facts necessary for the decision of this appeal may be briefly stated. One Perambala Chettiar and his two sons, one an adult and the other a minor, sold certain lands to the father of the third defendant on 26 January, 1920, for Rs. 46,000. Rs. 34,000 out of the price was paid by the vendee and for the balance of Rs. 12,000 the vendee executed on the same day a deed of simple mortgage mortgaging the properties which he had just purchased. The mortgage (Ex. P-2) was executed in favour of the vendors, namely, Perambala, Kanakasabai, Perambala's son by his first wife and the first plaintiff in the present suit and " a male child unnamed ", who, it is admitted, is the present first defendant. The present second defendant was not then born. The first and second defendants are Perambala's sons by his second wife. Though the mortgage deed was executed in favour of Perambala and his two sons then in existence, it is obvious that it was a mortgage in favour of the joint Hindu family. Perambala died on the 20th November, 1927, undivided from his sons.

(2.) On foot of the mortgage the present first and second defendants filed O.S. No. 15 of 1935 in the Court of the Subordinate Judge of Mayavaram impleading Kanakasabai as the first defendant along with the mortgagor's son, the present third defendant and subsequent transferees of portions of the hypotheca from the Official Receiver of East Tanjore in whom the property of the mortgagor had vested on his insolvency, the Official Receiver himself being the ninth defendant. In paragraph 7 of their plaint the plaintiff alleged that they alone were entitled to get the entire amount due on the mortgage as their father Perambala and their elder brother, Kanakasabai had discharged their own personal debts with the amount of Rs. 34,000 which had been received under the sale deed referred to above and also as they had sold: the entire moveable properties like jewels, etc., existing in the family and utilised the amount for their personal use and as they had received amounts in several other ways.

(3.) There was a further allegation that the entire amount mentioned in the suit mortgage deed: was accordingly set apart for the share of the first plaintiff in which however, the second plaintiff though born subsequent to the execution of the mortgage was entitled to participate.