Decided on September 01,1953



Govinda Menon, J. - (1.) While dismissing S. A. No. 1106 of 1945, Baghava Rao J. granted leave for a further appeal as against the eighth respondent therein and refused leave as against the fifth respondent. Under those circumstances, the appellant has preferred the above Letters Patent Appeal against the eighth respondent in the second appeal who was the 13th defendendant in O. S. No. 23 of 1942 on the file of the Additional Subordinate Judge's Court of Mathurai out of which these proceedings have arisen.
(2.) The plaintiff-appellant is the eldest son of the first defendant whose other sons are defendants 2 to 4 & they are members of a joint Hindu family. The suit was one for partition and separate possession of the plaintiff's share in .the joint family properties. The 13th defendant, who is the contesting respondent both in the second appeal and in this Letters Patent Appeal, was impleaded as an alienee of certain joint family properties and the plaintiff claimed his share in those properties as well. The 13th defendant's contention, which alone need be noted at this stage, is that under a valid decree and execution-sale against the first defendant representing the joint family, she has purchased those properties in court auction and that the properties were no longer liable to be partitioned. Both the lower courts, as well as Raghava Rap J. have upheld her contentions though for different reasons. How the 13th defendant came to acquire the right in the properties may be shortly stated.
(3.) On 12-11-1934, the first defendant executed Ex. D-34 a mortgage for a sum of Rs. 5000. On the same date under Ex. P-2, the self-same properties were leased back by the mortgagee to the first defendant for a period of three years on a rental of Rs. 400 per year. The mortgage and the lease deed were to be coterminous, i.e., the mortgage was to enure for a period of three years before redemption and the lease was to be for a period of three years from the date when the mortgagee-lessor granted to the mortgagor-lessee the lease under Ex. P-2. There was a stipulation that the rent of Rs. 400 will be paid yearly. As the first defendant did not pay one instalment, the I3th defendant filed O. S. NO. 302 of 1936 on the file of the District Munsif's Court of Tiru-mangalam and got a simple money decree for the amount (Ex. D-41, dated 24-2-1937). In execution of that decree, the equity of redemption of the mortgagor was put up for sale which was confirmed on 29-3-1938, and the 13th defendant recovered possession in execution of the sale certificate on 3-8-1940. On 27-9-1940, the plaintiff became a major and the suit for partition was filed in the District Munsif's Court of Tirumangalam on 5-3-1941. It was returned for presentation to the proper Court, as the pecuniary value exceeded the jurisdiction of the District Munsif's Court on 23-12-1941 being the last date on which the District Munsif's Court closed for the Christmas holidays. The plaint was re-presented in the Subordinate Judge's Court of Mathurai on 2-1-1942, the reopening date after the Christmas holidays.;

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