- (1.) The plaintiff in OS No.30 of 2008 on the file of Sub Court, Harur, (OS No.79 of 2004 Sub Court, Dharmapuri) whose suit for declaration that the mortgage of schedule 'A' properties by Vediappan in favour of the defendants is illegal void ab initio and unenforceable, declaration that the proposed auction sale of the Schedule 'A' and 'B' properties is arbitrary and illegal, permanent injunction restraining the defendants from proceeding any further against the Schedule 'A' and 'B' properties of the plaintiff and for costs of the suit, was dismissed by the Trial Court, upon its affirmation by the Lower Appellate Court has come up with this Second Appeal.
(2.) The suit was laid by the appellant/plaintiff contending that the plaintiff and one D.Sundararajan were originally partners of the Partnership Firm and they were carrying on business in the name and style of "Sri Vaitheswaran Pipes". The said Partnership Firm had obtained a loan from the first defendant viz., The Tamilnadu Industrial Investment Corporation Ltd., which is a State Financial undertaking. As a security for the said loan, the Partnership had mortgaged its properties described in Schedule 'B'. The properties described in Schedule 'A' which originally belonged to one Vediappan were given as collateral security and the said Vediappan had guaranteed the repayment of the loan by the Firm. The business was carried on for some time and the same could not be continued due to the untimely death of the other partner, viz. Sundarrajan on 13.06.1999. The business was also closed down immediately. The guarantor Vediappan also died intestate on 21.07.2001. The plaintiff is one of the daughters of the said Vediappan.
(3.) The plaintiff would contend that the mortgage executed by Vediappan of the entirety of the 'A' Schedule properties is void ab initio and illegal, since he is not the exclusive owner of the said property. It was claimed by the plaintiff that the 'A' Schedule property was ancestral property of Vediappan in which his sons and daughters were entitled to a right by birth. It was contended that the mortgage created by Vediappan, has no legal force and it is not binding on the shares of the plaintiff as well as the other children of Vediappan. Since the first defendant in exercise of its purported rights under Section 29 and 31 of the State Financial Corporation Act, attempted to bring the property to sale, the plaintiff had come up with the above suit seeking the aforesaid reliefs.;