SEVAYI AMMAL Vs. M. SOMASUNDARAM
LAWS(MAD)-1970-3-34
HIGH COURT OF MADRAS
Decided on March 04,1970

Sevayi Ammal Appellant
VERSUS
M. SOMASUNDARAM Respondents

JUDGEMENT

B.S.SOMASUNDARAM, J. - (1.) THE Athankudi Udayars' Estate in Ramanathapuram District, which consisted of many villages, was owned by four branches. One member in one such branch was adjudged an insolvent. The Official Receiver in whom his share vested, filed O.S. No. 70 of 1938 in the Sub -Court, Devakottai, for administration. The members of the other three branches were parties to this suit. Preliminary nary decree for partition was passed and the properties were under the management of one Vasudeva Iyengar, an advocate, who was appointed as Receiver by the Court.
(2.) THERE was arrear of land revenue to the tune of Rs. 18,000, and for this S. No. 54/7 and some other items which belonged to this estate, were sold on 4th September, 1961 under the Revenue Recovery Act. One of the defendants in O.S. No. 70 of 1938, viz., defendant No. 15 offered to deposit Rs. 20,000 for setting aside that sale. Sevayi Ammal the present plaintiff, who was defendant No. 31 in that suit, tendered Rs. 21,500. This was accepted and the sale was set aside on payment of Rs. 18,000. On the directions of the Court, the Receiver executed the sale deed Exhibit A -5 on 19th May, 1962 to Sevayi.
(3.) DEFENDANTS 1 to 5 in O.S. No. 70 of 1938 owed certain amounts to one Lakshmi Achi. The latter filed a suit in O.S. No. 42 of 1946 in the Sub -Court, Devakottai, and obtained a decree. She brought for sale S. No. 54/7 and in the sale held on 2nd January, 1961, Somasundaram, the present defendant, purchased it. This sale was confirmed on 9th February, 1961, and Exhibit B -1, the sale certificate, was issued to him. He filed I.A. No. 433 of 1961 in the Sub -Court, Devakottai, for deleting this item of property, from the conveyance which was directed to be executed by the Receiver in favour of the plaintiff. He contended that the sale in his favour was earlier and that it alone should prevail. His application was dismissed on the and of April, 1962 (Vide Exhibit A -3). Later, he obtained possession of the property on 25th July, 1962 as per the orders in E.A. No. 398 of 1962 in E.P. No. 168 of 1958, in O.S. No. 42 of 1946. Thereupon, the plaintiff filed E.A. No. 487 of 1962 for re -delivery, but her application was dismissed on 12th December, 1963. She then filed O.S. No. 312 of 1963 in the Court of the District Munsif, Devakottai for setting aside the above summary order and for possession of this property with profits, past and future. The defendant contended that this property belonged exclusively to defendants 1 to 5 in O.S. No. 70 of 1938, that they never vested in the Receivers appointed in that suit, that as per Exhibit B -1 he had become entitled to the property much prior to the execution of the sale deed by the Receiver to the plaintiff, that the Receivers or the plaintiff never had any possession and that there were no grounds for setting aside the order passed in E.A. No. 487 of 1962. The learned District Munsif upheld the title advanced by the plaintiff and decreed her suit. On appeal, the learned Subordinate Judge came to a contrary conclusion, set aside the decree and dismissed the suit. The plaintiff challenges the correctness of this decision. Which of these two persons has title to the property, will be the only question for determination in this appeal, exhibit B -1 sale deed in favour of the defendant is prior to the sale under Exhibit A -5 in favour of the plaintiff. But, it is pendente lite, because the suit O.S. 70 of 1938 was then pending. Further, the evidence also establishes that the defendant had purchased under Exhibit B -1 only the undivided share of defendants 1 to 5, thereby getting a mere equity to sue for partition. The Lower Appellate Court has committed an error in treating the sale under Exhibit B -1 as one relating to the entire S. No., as though it belonged exclusively to defendants 1 to 5 in O.S. No. 70 of 1938. These properties were included in this suit as joint properties available for partition, and in fact a preliminary decree for partition has been passed in respect of this item also in the year 1944. Therefore, the contention that defendants 1 to 5 owned these items exclusively, is untenable and is without any substance. Further, this has also been negatived in the earlier proceedings in I.A. No. 433 of 1961, wherein the defendant wanted a deletion of this item from the sale deed proposed to be executed by the Receiver to the plaintiff. This decision in Exhibit A -3 remains unchallenged and it is not now open to him to agitate the matter further. Thus, the defendant has purchased only an undivided 1/4th share by Exhibit B -1. It is well -settled that the purchaser of a co -parcener's undivided interest in a joint family property, is not entitled to possession of what he has purchased, and his only right is a mere equity to sue for partition and ask for allotment to him, that which on partition might be found to fall to the share of the alienating co -parcener". Vide Manikayala Rao v. Narasimhaswamy : [1966] 1 SCR 628 . Thus, the only right which the defendant has is only to sue for partition and not to claim any specific item.;


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