- (1.) THE appeals are preferred against the judgment and decree dated 27.03.1995 in O.S.No.196 of 1998 on the file of the III Additional Subordinate Judge, Madurai. THE first and second defendants are the appellants.
(2.) THE brief facts of the cases are as follows: THE suit properties originally belonged to Gurusamy Naidu and his wife Balammal. Gurusamy Naidu had a son named Chinnaiya Naidu. THE said Chinnaiya Naidu was leading an immoral life which prompted his parents to execute a Will dated 27.04.1952 in respect of the suit properties and other properties in favour of their grandson Govindarajulu. Under the said Will the said Govindarajulu is to enjoy the property for his life time without the power of alienation and the vested remainder is given in favour of the plaintiffs and the defendants 3 and 4 who are the great grandchildren of the testator. While Govindarajulu and his father Chinnainaidu were alive, dispute arose between them which culminated in filing a suit in O.S.No.191 of 1960. THE genuineness of the Will was disputed and ultimately, it was held that the Will is true, valid and binding. Chinnaiya Naidu preferred an appeal in A.S.No.11 of 1962. THE genuineness of the Will was upheld in the appeal. Govindarajulu became entitled to the properties as limited owner and he died on 01.06.1983 and he was also leading an immoral life and was not looking after the minor plaintiffs and the defendants 3 and 4. He had incurred number of debts. THEy are Avyavakariha debts and not for the benefits for the minors or the family. One Indhia Bai Ammal has filed a suit against the said Govindarajulu and obtained a decree. In pursuant to the decree, the properties were brought for sale and the first defendant has purchased Item No.1 and the second defendant has purchased Item No.2. THE said sales are null and void. THE alleged court auction is void. THE plaintiffs came to know about the alleged sale only in the year 1980. THE possession of the properties were with the plaintiffs' father and thereafter, it continues to be with the plaintiffs. Since the defendants are claiming right over the properties under invalid documents, the plaintiffs are constrained to file the suit for declaration and consequential injunction. The suit was resisted by the defendants separately. The first defendant would state that the properties belonged to Balammal and not to Gurusamy Naidu and the Will was denied. It is stated that the plaintiffs and the defendants 3 and 4 filed a suit against their father Govindarajulu through their mother in O.S.No.154 of 1974. One Indhia Bai Ammal was the second defendant. The suit was filed for an injunction restraining the defendants from executing the decree in O.S.No.549 of 1970. Govindarajulu had borrowed amounts from the said Indhia Bai Ammal on a mortgage and a suit was filed in O.S.No.549 of 1970 and a decree was passed. Challenging the execution proceedings the said suit in O.S.No.154 of 1974 was filed and the same was dismissed holding that Govindarajulu was within his rights to mortgage the property. The property was sold in a court auction and the auction purchaser took delivery and the plaintiffs are bound by the said sale. The court auction purchaser sold the portion of the first item to J.S.Krishnan under a sale deed dated 26.11.1982 and another portion to J.S.K.Nagarajan under a sale deed dated 22.12.1982. The purchaser sold the portions to the first defendant under two sale deeds dated 20.09.1984 and the remaining portion was also sold by the auction purchaser to this defendant under a sale deed dated 14.09.1984 and thus the first item of the property was sold to this defendant and this defendant is the bona fide purchaser for valid consideration. The first defendant is a Trustee of a Pharmacy Collage called K.M.Pharmacy College and the college is situate in the first item of the property and the plaintiffs are not entitled for any relief. The defendant has raised construction and has invested heavy amount in the college. The plaintiffs are estopped by the principle res judicata in claiming the title. The second defendant has also filed his written statement on the same line of defence denying the title of the plaintiffs.
(3.) THE learned III Additional Sub Judge, framed triable issues and on elaborate discussion decreed the suit as prayed for declaring that the plaintiffs and the 3 and 4th defendants are entitled for the suit property. Aggrieved by which, the first and second defendants have filed these two appeals on various grounds. Mr.S.Parthasarathy, learned Senior Counsel for the appellant submitted that the trial court is not right in holding that the father of the plaintiffs had only a life interest and he had no right to encumber the suit property. The learned counsel pointed out that the judgment rendered in O.S. NO. 549 of 1970 is binding on the plaintiff and the court below is wrong in holding that the encumbrance created by the father of the plaintiff was valid only till his life time. The learned counsel pointed out that the defendants have purchased the property from the court action purchaser and has taken possession of property and the plaintiffs cannot claim any right in the suit property.;