IMPORTANT POINTS
Sale deed having a direct connection with mortgage to pay the mortgage money and further loan cannot be avoided.
Discussing evidence while answering substantial question of law in second appeal cannot be termed re-appreciation of evidence.

JUDGMENT :

M. R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 02.07.2007 passed by the High Court of Madras in Second Appeal No. 1900 of 1991 by which the High Court has allowed the said appeal preferred by the original defendant Nos. 3 and 4 and has quashed and set aside the judgment and order passed by the learned First Appellate Court as well as the learned Trial Court decreeing the suit and consequently dismissing the suit, the original plaintiff and original defendant No. 2 have preferred the present appeal.

2. The facts leading to the present appeal in nutshell are as under:

That appellant No. 1 herein – Rengan Ambalam instituted the suit against the original defendants before the learned Sub-Court, Pudukkottai, being O.S. No. 73 of 1987 praying for the partition claiming his 1/3rd share in the joint family properties and the possession thereon. It is required to be noted that the original defendant No. 1 was the father of the plaintiff and defendant No. 2 and therefore the plaintiff claimed that all of them have 1/3rd share in the joint family properties, more particularly, the suit “B” Schedule property. It was the case on behalf of the plaintiff that the suit property belonged to the grandfather of the plaintiff and defendant No. 2 and father of defendant No. 1-Kuppamuthu Ambalam. The said Kuppamathu Ambalam had five sons, including defendant No. 1. That, in a partition in the year 1966, amongst the five brothers the suit properties came to the share of defendant No. 1 Rengan Ambalam, father of the plaintiff and defendant No. 2. It was the case on behalf of the plaintiff that those properties were being enjoined in common by the plaintiff and defendant Nos. 1 and 2 and therefore all of them are entitled to 1/3rd share each. It was also the case on behalf of the original plaintiff that his father-defendant No. 1 was acting adversely to the interest of the plaintiff and with a view to defeat the rights of the plaintiff, defendant No. 1-father mortgaged the suit “B” schedule properties for a sum of Rs.3,000/- in favour of one Subbaiya Nadar. According to the plaintiff, there was no necessity for mortgaging the suit properties. That the plaintiff objected to that mortgage. According to the plaintiff, despite his objections, thereafter the original defendant No. 1-father sold the suit “B” schedule properties in favour of defendant Nos. 3 and 4, as if the properties belonged to him himself and his brother’s sons. It was the case on behalf of the plaintiff that in fact the property set out in schedule “B” is still in the possession and enjoyment of the plaintiff. According to the plaintiff, relying on his exclusive possession, the plaintiff caused a notice to his father and the mortgagee-Subbaiah Nadar that they should not trespass in the suit property. As the suit “B” schedule property was sold by defendant No. 1-father in favour of defendant Nos. 3 and 4, the plaintiff instituted the aforesaid suit for partition, possession and mesne profits. It was also the case on behalf of the plaintiff that as he is not signatory to the sale deed in favour of defendant Nos. 3 and 4, the said sale deed is not binding on him.

2.1 The suit was resisted by defendant Nos. 3 and 4 by filing the written statement. It is required to be noted that during the pendency of the suit, the original defendant No.1-father died and, therefore, he could not be examined before the Trial Court and therefore the suit was resisted by defendant Nos. 3 and 4 to protect his rights under the sale deed which was executed by defendant No. 1 during his lifetime. It was the case on behalf of defendant Nos. 3 and 4 that the plaintiff was not in possession and/or enjoyment of the suit property. Defendant No. 1-father and family manager was managing the properties till his death. That defendant No. 1’s family was joint and undivided continuously. That defendant No. 1-father and Manager of the family, was managing the family with