In a suit for partition of joint family properties, where the alienations in question were effected by the father or manager of the family, and not as guardian of the minor children, there is no necessity to pray for setting aside the transactions.

Srinivasan J.

The plaintiff who has failed in the trial court is the appellant herein. He is the son of one Lakshmanaswami Naidu who is the 1st defendant in the suit. The 2nd defendant is his brother. The 3rd defendant is the mortgagee under a document dated 6. 1969 executed by the 1st defendant, 2nd defendant and the plaintiff represented by his father and guardian, the 1st defendant. The 4th defendant is the auctioneer. Defendants 5 to 11 are the purchasers in the auction held by the 4th defendant under section 69 of the Transfer of Property Act initiated by the 3rd defendant, the mortgagee.

2. The case of the plaintiff as set out in the plaintiffs in short as follows:-The plaintiff and defendants-1 and 2 were members of a joint family which had several ancestral properties. The plaintiff is entitled to 1/3rd share therein. Certain alienations were made by the 1st defendant which were not for the purpose of the family or for the benefit of the family. They were effected for illegal purposes. The 1st defendant is a spend thrift and he utilised the funds for discharging his avyavaharika debts and for that purpose, he effected alienations. On 21. 1973, the 3rd and 4th defendants brought the properties for sale in exercise of the powers of the 3rd defendant under the mortgage. Defendants 5 to 11 purchased the properties. The recitals in the deed of mortgage are sham and untrue and they have been made with a view to give a colour to the transaction and to hide the real purpose. The properties are pucca constructions requiring no repairs at all. The plaintiff feels that the amount realised from the mortgage was utilised actually by the 1st defendant for his illegal and immoral purpose. The mortgages did not make any enquiry much less any bona fide enquiry before lending money to the 1st defendant who was a well known spend thrift and a race-GU. No inspection of property was made. Hence the mortgage is not binding on the plaintiff; nor the sale effected on 21. 1973 is binding on the plaintiff. Hence the plaintiff has prayed for a decree for partition declaring his 1/3rd right in the joint family properties and for division by metes and bounds.

3. The suit is resisted by the defendants 3 to 11. The main contention is that the mortgage is for the discharge of an antecedent debt and it is binding on the plaintiff. It is contended that the 1st defendant has spent money only for the family purposes and none of the debts is avyavaharika. The allegation that the plaintiff is that the 1st defendant is a race-goer and spend thrift is denied. It is also contended that the suit is barred by limitation. A plea is raised that the suit is not maintainable without a prayer for setting aside the alienations.

4. The trial court framed eight issues and three additional issues. It is not necessary to set out the same in detail here. Suffice it to point out that the main issue around which the other issues revolve, is whether the mortgage is tainted by illegality or immorality and whether the debt is binding on the plaintiff.

5. The trial Court has found that the suit is not maintainable as there is no prayer for setting aside the transactions. The trial court has further found that the debts are for legal purposes and for the benefit of the family and for the discharge of antecedent debts. Consequently, the trial court has held that the transaction are binding on the plaintiff and dismissed the suit. Aggrieved thereby, the plaintiff has preferred the appeal.

6. After the filing of the appeal, the plaintiff/appellant died and his wife and daughter have come on record as his legal representatives.

7. It is the contention of learned counsel for the appellant that there is no evidence whatever to prove any enquiry on the part of the mortgagee, the third defendant, as to whether the money borrowed by the first defendant was utilised by the first defendant for family purposes. According to learned counsel the evidence does not make out