MUTHU NADAR Vs. CHINNADORAI NADAR

JUDGEMENT

(1.) This second appeal is preferred by the third defendant against the decree of the learned Subordinate Judge of Tuticorin in A.S. No. 65 of 1945. The lower appellate Court granted a decree in favour of the plaintiff for partition and separate possession of 5/18 share in the B Schedule properties on payment of Rs. 225. The third defendant has preferred an appeal objecting to the decree for partition passed in favour of the plaintiff. Defendants 1, 2 and 4 sail along with the third defendant though they have not preferred an appeal. They have however been made respondents to the appeal and hence the case of defendants 1 to 4 falls to be considered in this second appeal.

(2.) The plaintiff's father created a mortgage over his share of certain property on foot of which a suit, O.S. No. 261 of 1926, was filed by the mortgagee. On the 22nd July, 1930, a final decree was passed against the plaintiff's father for a sum of Rs. 500. The plaintiff's father died in June, 1933. He left behind him two sons of whom the plaintiff is the younger, his elder brother being Anthiramudaya Nadar. He also left a widow Vaduvathi Nadathi who is the fifth defendant in the suit. From the suit register extract, Exhibit D-3, filed in the case it appears that the personal remedy on the mortgage had become barred and that two infructuous execution applications that had been filed by the decree-holder had been dismissed on 9th November, 1933, and 13 September, 1935. During the course of the execution proceedings the plaintiff and his elder brother were brought on record on 21 August, 1935, but the execution petition was allowed to be dismissed by the decree-holder. It does not appear that any amount was realised towards this decree as a result of the execution applications.

(3.) On 22nd January, 1936, under Exhibit D-5 the plaintiff's elder brother and his mother sold the property which is the subject of this suit for a sum of Rs. 400 of which Rs. 390 was directed to be paid to discharge the decree in O.S. No. 261 of 1926. On the 30 of April, 1936, this decree was assigned by the decree-holder to D.W. 4 in the case, the maternal uncle of defendants 1 to 4. On the 12 June, 1937 a sum of Rs. 450 is stated to have been paid by the vendees to the assignee decree-holder and a discharge has been entered on the deed of assignment itself.