NAMBAR Vs. PANDIKADAN MULLATHIL CHANDUKUTTY

JUDGEMENT

(1.) THE question for decision in this second appeal is whether defendant 15 is entitled to priority by virtue of his decree against Gopala Menon, a junior member of defendant 1's tarwad, in S.C.S. No. 56 of 1921 on the file of the District Munsif of Parappanangadi. THE facts are as follows : Gopala Menon who was entitled to a sub-mortgage right, died in 1917 and under the Malabar law he having died intestate, his property, that is his sub-mortgage right lapsed to the tarwad, but subject to the right being treated as an asset available for the payment of debts due to his creditors. In 1920 after the property lapsed to the tarwad, the tarwad mortgaged the properties including the suit property to the plaintiff. THE suit property was thereafter purchased by defendant 15 in 1931. THE two questions that fell to be decided before the lower Courts are : (1) whether defendant 15 can claim any priority over the plaintiff and (2) whether defendant 15 is entitled to the benefit of improvements since the date of his purchase. THE learned Subordinate Judge allowed both the contentions advanced by defendant 15. So far as the question of improvements is concerned, the matter is said to have been conceded by the plaintiff's vakil and I do not therefore propose to disturb the finding of the lower Appellate Court in regard thereto. But the decree in so far as it gives defendant 15 priority over the right of the plaintiff in respect of the debt must be set aside. Once the property has devolved upon an heir, it becomes his property and he is entitled to mortgage the property as his own. THE property cannot be said to be hypothecated for the ancestors debt and the creditor of the ancestor, i.e. defendant 15 in this case, has not taken appropriate proceedings to seize the property before the mortgage. Unless the alienation is proved to be mala fide, it will prevail against the ancestors creditor's right. It may be, the creditor's right to recover the property from the heir may remain unaffected, because the creditor can have recourse against the heir not only against the assets inherited but also personally in so far as the heir is not able to satisfy the Court that the assets had been utilized for purposes binding on the estate of the ancestor. THE right of defendant 15 therefore to recover his debt must only be subject to the mortgage right of the plaintiff.

(2.) THE decree of the lower Appellate Court will be modified in accordance with my judgment. I direct each party to bear his own costs of this second appeal. THE direction given by the lower Appellate Court that the plaintiff should pay the costs of defendant 15 is set aside. Whatever rights the parties may have under the Madras Agriculturists Relief Act, they will remain unaffected by this judgment.