Guruswamy Mudaliar vs Ayyanar Thevar and Others

Alfred Henry Lionel Leach, C.J.—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 K. Satyanarayanappa and Others Vs. Rahimatullah Sahib and

Others, decided the question. We cannot subscribe to that opinion, but we are otherwise in agreement with the learned Judge.

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.

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.

In K. Satyanarayanappa and Others Vs. Rahimatullah Sahib and Others, this Bench held that where only some members of a Hindu joint family

are members of a co-operative society and the family as such is not a member, Section 51 of the Madras Co-operative Societies Act does not

prevent a coparcener who is not a member of the society from instituting a suit for a declaration that a sale held in execution of an award obtained

by a society has not passed his interest in the property to the purchaser. Such a suit had been dismissed in limine on the ground that it did not lie.

We held that it did lie and remanded the case to the Original Court to be tried on the merits. In doing so we pointed out that at the hearing the

pious obligation rule might have bearing as against the sons of the mortgagor, but we went no further than this.

The plaintiffs in the present case could take no part in the proceedings under the Act and did not attempt to do so. Consequently they say that

their interests are not affected by anything done in those proceedings. They admit, however, that they are liable on the mortgagee under the pious

obligation rule.

What the Courts has to look at is, what was mortgaged and what was sold? The deed of mortgage contained no reservation. It purported to

convey to the second defendant the full rights of the mortgagor in specified family properties. As we have already indicated, the mortgage was

executed to secure an antecedent debt, and therefore the father had the right of charging his sons interests as well as his own in the hypotheca. In

these circumstances, the deed must be read as conveying to the mortgagee all the rights that the mortgagor possessed and as he possessed the

right of mortgaging his sons'' interests those interests passed.

Now what was sold? The sale covered all the properties mortgaged and there was no reservation of the interests of the sons. As the interests of

the sons had passed to the mortgagee they are bound by the sale. The plaintiffs could only succeed by showing that the mortgage is not binding on

them in law and this they cannot do. Admittedly it is binding on them.

The appeal is dismissed with costs in favour of the third defendant.