GURUSWAMY MUDALIAR Vs. AYYANAR THEVAR

JUDGEMENT

(1.) This appeal raises a question of Hindu Law. It is from a judgment of Somayya, J., under Clause 15 of the Letters Patent. The learned Judge considered that the judgment of this Bench in Satyanarayanappa V/s. Rahimatullah (1943) 1 M.L.J. 287 decided the question. We cannot subscribe to that opinion, but we are otherwise in agreement with the learned Judge.

(2.) The appeal arises out of a suit for partition instituted in the Court of the District Munsiff of Srivilliputtur by the appellant and his elder brother, who is now dead. There were five defendants, but it is only necessary to refer to the first three. The first defendant was the father of the plaintiffs, with whom he is joint, the second defendant was the Rajapalayam Co-operative Urban Bank, Ltd., and the third defendant was the purchaser from the second defendant of the properties now in suit. The first defendant was a member of the Rajapalayam Cooperative Urban Bank, Ltd., and was indebted to it. As security for his indebtedness he mortgaged family properties to the second defendant. The debt was an antecedent debt and therefore binding on the sons. The first defendant failed to discharge the mortgage and consequently the second defendant took steps to enforce it under the provisions of the Madras Co-operative Societies Act, 1932. In due course the second defendant obtained an award and brought the properties covered by the mortgage to sale. At the auction the second defendant purchased the properties and subsequently sold them to the third defendant.

(3.) The plaintiffs alleged that only their father's interest in the properties had passed to the second defendant at the sale held in execution of the award. The District Munsiff held that the interests of the sons as well as the interest of the father had passed, but on appeal the Subordinate Judge of Ramnad disagreed and allowed the plaintiffs claim for partition on the basis that their interests remained unaffected. The third defendant appealed to this Court and Somayya, J., restored the decree of the District Munsiff. The plaintiffs have now appealed with leave. The question which the Court is called upon to decide is whether the interests of the sons in the mortgaged properties are now vested in the third defendant.