Rangaswami Nadar vs Sundarapandia Thevar and Others

Srinivasa Ayyangar, J.—The suit out of which this second appeal has arisen was for sale on a mortgage. The plaintiff was the mortgagee and

defendant 1 the mortgagor. Defendant 3 was made a party to the suit on the ground that he claimed ownership in respect of item 2 of the property,

the subject-matter of the suit. The plaintiff has been granted a decree in respect of half of item 2 in the suit.

The point taken last by the learned vakil for the appellant may first be disposed of. He argued that defendant 3 was not a necessary party at all

to the suit upon the mortgage, but he was made a party as a person claiming title to the property in himself and the plaintiff made him a party to the

action on the ground that the property which was subject to the mortgage was in his possession. No objection was taken to this course and we

cannot possibly accede to the contention that at this stage we should allow this point of misjoinder to be taken for the first time.

It was next argued that the decision relating to the fraud on the registration on the ground that item 1 was fraudulently included originally in the

suit mortgage Ex. A, merely for the purpose of getting the deed of mortgage registered in a particular registration district, was come to by the lower

appellate Court without an opportunity being given to the District Munsif''s Court to arrive at a finding thereon. The District Munsif did not give a

finding with regard to it because in the view he took of the case, it became unnecessary for him to do so. But the lower appellate Court has gone

fully into the matter and affirmatively found against the fraud alleged. We are not satisfied that the finding of the lower appellate Court on this matter

is wrong. The lower appellate Court was not bound to remand the case and it was entitled in law to come to any finding of fact by itself.

On the main question it was argued by the learned vakil for the appellant that the basis upon which the lower appellate Court proceeded to grant

the decree to the plaintiff was wrong, namely, the ground that defendant 3 was estopped from contending that the mortgage in favour of the plaintiff

was improper. It is difficult to sustain the judgment of the lower appellate Court on this matter. If the property was admittedly joint family property

the mere fact that it comes to be dealt with by one of the members of the family as if it were his own property cannot be relied upon by any person

who deals with such purchaser for the purpose of showing that such purchaser can be regarded'' as ostensible owner of the property. Estoppel can

arise only if the owner of the property allows it to be dealt with by the ostensible owner In other words, when the owner holds out some other

person as the real owner of the property, he is in law estopped from afterwards disputing whatever that ostensible owner did. If, admittedly, the

entire joint family was the owner there was no room for invoking any such estoppel because it was nobody''s case that the joint family held out

some third party as the owner of the property. But it is clear that, if not on that ground, the judgment of the lower appellate Court cannot be

sustained for other reasons.

We must take that the finding of the lower appellate Court with regard to Ex. D, the sale-deed in favour of defendant 1, was that it was for

consideration. Mr. Watrap Subramania Ayyar for the appellant argued that the finding with regard to the consideration for Ex. D was only involved

in the finding of the consideration for Ex. A and that, therefore, the lower appellate Court should be called to find separately. The consideration for

the two are separate and it is clear that, according to the finding recorded by the lower appellate Court, the consideration for Ex. D was a certain

promise to discharge the debts of the vendor made by defendant 1 and the consideration for Ex. A was a promise to discharge those debts made

by the plaintiff to defendant 1. It was however, strenuously contended that there was a previous suit instituted by defendant-appellant 3 for

partition and delivery over to him of his share in item 2, and that in that suit it was held by the Court that Ex. D was not supported by any

consideration and was also in fraud of defendant 3, the plaintiff in that suit. Defendant 1 was a party to that suit and as an adjudication it would

undoubtedly be binding on her. But, so far as the present plaintiff is concerned, it cannot operate as res judicata. It is undoubtedly true that the

plaintiff does claim under defendant 1, but the title of defendant 1 alone was then in question, and as the adjudication was subsequent to the title of

the plaintiff it follows that any adjudication come to against the alienor subsequent to the alienation can-not operate as res judicata against the

person whose alienation was not then in question. Therefore, the plea of res judicata, it follows, cannot Be sustained,

Next, it was argued that, in any case as the mortgage in favour of the plaintiff was made during the pendency of the suit for partition instituted by

defendant 3 and referred to above, the adjudication in that ease must in some manner be regarded as binding upon the plaintiff. As the plaintiff was

not a party to that suit and is not a person claiming from defendant 1 subsequent to the adjudication it follows that the rule is not available as against

him. With regard to alienation pendente lite the rule is not that the alienation is absolutely void, but the transfer will not affect the rights of any party

thereto under any decree or order which may be made in the suit. In other words, the transfer will be available and valid subject, however, to the

result of the suit during the pendency of which the transfer is made. If as a result of the previous suit the entire property had been given to

defendant 3 no doubt it would not now be open to the plaintiff to rely upon that mortgage even to the extent of the one half. But the previous suit

was only for the half-share of defendant 3 in the property and there was no claim in the previous suit relating to the entire property and, in any

case, the decree was only by way of granting to him a moiety of item 2 in the present suit. If so, we must hold, as has been held by the lower

appellate Court that it is only to the extent of the half that defendant 3 became entitled that the mortgage would not be binding. The decree,

however, that has been granted is only in respect of the other moiety than the moiety that was granted to defendant 3 under the decree. It follows

from all these considerations that the decree passed by the lower appellate Court is right and the second appeal is, therefore, dismissed with costs

of respondent 1.