Decided on March 27,1952



- (1.) The dispute in this second appeal relates to nearly nine acres of land which, along with some other properties, were originally owned by two persons Adimoolam and Thambusami, and were the subject of a mortgage in favour of one Adinarayana Pillai. One Doraisami became the purchaser of the disputed properties from the owners, Adimoolani and Thambusami, with an undertaking to discharge the mortgage of all the properties. But he did not conform to that agreement. By his will Ex. D. 7 dated 17-10-1930, Dorasami bequeathed his ownership in these and other properties in favour of his only son, the fifth defendant, and his daughter-in-law the 2nd defendant, for their lives, with a vested remainder firstly in favour of the male children of the fifth and the second defendants, and failing the birth of any male children to them, in favour of their female children, with absolute rights. There were also further directions in the will that in case the fifth and second defendants did not have any progeny, other persons named in the will should take the properties with absolute rights. The result of this will was that on the death of Doraiswami, the fifth and second defendants became entitled to a life estate in the disputed properties with remainder in favour of any children that may be born to them.
(2.) The heirs of the mortgagee, Adinarayana Pillai, filed O. S. No. 34 of 1933 in the court of the Subordinate Judge of Cuddalore for recovery of the mortgage amount by sale of all the hypotheca. By that time Doraiswami had died and the present fifth defendant his only son, was impteaded as the 24th defendant on the ground that he represented the joint family of Doraiswami. Obviously, the plaintiffs were not aware of the will Ex. D. 7, and no mention was made of the devise in favour of the fifth defendant and nothing was said about the legacies created there under. On the 19th December 1934, there was a preliminary decree for sale of the mortgaged properties, Ex. P. 11, followed by a final decree on 22nd July 1938, Ex. P. 12. In execution of that decree, the present plaintiff purchased these items in court auction on 26th April 1943 and when he proceeded to take possession of the properties on foot of the sale certificate issued in his favour, he was obstructed by defendants 1 to 5. Consequently, an application for removal of obstruction Was made which did not meet with success and the present suit by the plaintiff is for removal of obstruction and recovery of properties on the strength of the sale certificate in his favour.
(3.) As stated already, the second defendant is the wife of the fifth defendant and defendants 3 and 4 are their minor children. The first defendant is a usufructuary mortgagee of a part of the property and purchaser of some other parts of the property from defendants 2 to 5 under the documents dated 31st July 1930 and 8th August 1941 (Exs-D. 10 and D. 11 respectively). He put up the objection on the ground that the plaintiff has obtained no title under the court sale, that defendants 2 to 5 continued to be the owners of the equity of redemption and therefore the judgment and decree in O. S. No. 34 of 1933 could not be binding on the suit properties. Defendants 3 and 4, the daughters of the second and fifth defendants, also put forward identical pleas contending that the fifth defendant impleaded as the 24th defendant in O. S. No. 34 of 1933 could, not have represented the equity of redemption and the decree obtained in that suit could not therefore enable a purchaser to acquire any rights in the suit properties. The trial court held that the decree in O. S. No. 34 of 1933 was not valid and binding on defendants 1 to 4 because the fifth defendant did not represent defendants 2 to 4 and the estate of Doraiswami in the suit. On appeal by the plaintiff, the Subordinate Judge of Cuddalore, has set aside the decision of the trial court and decreed the suit as prayed for. The present second appeal is by the first defendant claiming to be the assignee and mortgagee of the suit properties from defendants 2 to 5,;

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