Judgment

SIKRI, C.J.I. :- I have had the advantage of perusing the judgment prepared by my brother, Beg J., but as I arrive at the same conclusion by a slightly different route I am writing a separate judgment. I may give a few facts to make the judgment self-sufficient. The following pedigree may enable us to appreciate the facts :

2. On June 23, 1956 Ayyaswami (Plaintiff) filed a pauper petition No. 137/1958. In the plaint he claimed a partition of B Schedule properties which, according to him belonged to Joint Hindu Family consisting of himself and the defendants. While this suit was pending, defendant No. 1 - Muniswami Mudaliar - and four of his sons executed a sale deed (Ex. B-7) in respect of some lands in Ozhaiyathur village in favour of Jayaram Mudaliar on July 7, 1958. These properties comprised items 5, 15 to 19, 24 and 28 of Schedule B. On July 15, 1960 a certificate of sale (Ex. B-51) was issued stating that Jayaram Mudaliar had purchased at public auction immoveable property (described in the certificate) for Rs. 6,500/-. The property is stated to have been sold for "pump set arrears under Hire-Purchase System due by Muniswami Mudaliar." Exhibit B-51 covered items 4, 18, 20, 23 to 27 and 31. It is common ground that these properties were included in the B Schedule mentioned in the plaint.

3. It is stated in the judgment of the trial Court that Jayaram Mudaliar got himself impleaded as 12th defendant. He filed a written statement inter alia alleging that the Plaint B Schedule properties were the sole and absolute properties of the Ist defendant. Additional issues were framed in the suit.

4. It appears that by virtue of order dated September 18, 1961, the plaint was amended and paras 24 (a) and 24 (b) inserted. They read :

"24 (a). The 12th defendant is a close agnate of the son-in-law of the Ist defendant. He executed the sham and nominal sale deed dated 7-7-1958 in favour of the 12th defendant to defeat the plaintiff s rights and to secrete the properties. It was not acted upon. It is the Ist defendant that continue to be in possession even now. The alleged sale deed is not supported by consideration. The mortgage itself was brought about to defeat any rights. In any event on the date of the alleged sale deed dated 7-7-1958 the mortgage decree debt was not subsisting. The plaint was filed in forma pauperis as O. P. 137 of 1958 on the file of this Hon ble Court on 23-6-1958. Thus in any event the sale is hit by the rule of lis pendens and the sale deed dated 7-7-1958 cannot and does not confer any rights on the 12th defendant.

24 (b). The revenue sale is brought about collusively and fraudulently. There was no publication. The 12th defendant never got into possession of any property. The possession still continues to be with the 1st defendant on behalf of the joint family. The sale is also hit by the rule of lis pendens. It also does not and cannot confer any rights on the 12th defendant."

5. Following additional issues were raised out of the pleadings of the 12th defendant :

(1) Whether the plaint B Schedule properties are joint family properties ?

(2) Whether the plaintiff is entitled to question the alienation in favour of the 12th defendant ?

(3) Whether the sale deed dated 7-7-1958 by the Ist defendant in favour of the 12th defendant true, valid and binding on the plaintiff and is affected by lis pendens ?

(4) Whether the Revenue sale by the Collector dated 16-3-1960 is liable to be questioned by the plaintiff ?

(5) Is the suit without impleading the Government liable to be questioned by the plaintiff ?

(6) Is the sale of pump set by the Ist defendant to the 12th defendant true, valid and binding on the plaintiff ?

(7) Whether the plaintiff and other members became divided from the Ist defendant after 1939 ?

(8) To what equisities, if any, is the 12th defendant entitled ?

(9) Is the plaintiff estopped from questioning the alienations and claiming any right in the B Schedule properties ?

6. We are only concerned with issues 3 a