Sale of joint family property in execution of mortgage decree if binding on the son’s interest in the property.

The plaintiffs appeal from the Judgment of the Subordinate Judge of Vellore pronounced on 20th March, 1957, in A.S. No. 129 of 1956 allowing the appeal preferred by the 7th defendant. The District Munsif had on 28th December, 1954, passed a decree in favour of the plaintiffs. The Subordinate Judge allowed the 7th defendant’s appeal and dismissed the suit with costs. The suit was for partition and separate possession of the plaintiffs 1/4th share in the suit property, namely, a house in Vellore.

The plaintiffs and the 2nd defendant are brothers. Their father is the 1st defendant. His brother is the 3rd defendant. The plaintiffs case is this. The suit property belonged to the joint family consisting of the plaintiffs and defendants 1 to 3. It was mortgaged by the 1st defendant in 1936 for Rs. 350 in favour of one Rathnammal. After her death, her heirs obtained a decree in O.S. No. 8 of 1949 on foot of the mortgage. The mortgage was not for family necessity or benefit or for any antecedent debt of the 1st defendant. It was therefore not binding on the plaintiffs They were not parties to that suit, although the 2nd defendant was made a party. The mortgage decree is not binding on the plaintiffs. In the Court sale held in execution of the decree passed on the mortgage in O.S. No. 8 of 1949, the 6th defendant purchased the property. He threatened to interfere with the plaintiffs’ possession. On those allegations, the plaintiffs filed the suit, which has given rise to this Second Appeal, praying for a declaration of their title and for possession. Defendants 4 to 7 contested the suit. In their written statement they said that the allegations that the property belonged to the joint family consisting of the plaintiffs and defendants 1 to 3 were mere inventions and tissues of lies They pleaded that, in pursuance of the purchase at the Court auction, 6th defendant had taken possession of the property through Court and that, at the time of his taking possession, defendants 1 and 2 were in possession of the property They said further that the mortgage executed by the 1st defendant was for discharging antecedent debts and was therefore binding on the plaintiffs.

The District Munsif held that the property was the joint family property of the plaintiffs and defendants 1 to 3, that the decree on the mortgage and the sale at the Court auction were not binding on the plaintiffs and that the plaintiffs were in joint possession of the property. On those findings, he passed a decree in favour of the plaintiffs. In appeal, the Subordinate Judge held that the property was the separate property of the 1st defendant. He then proceeded to consider the appeal on the assumption that the property was the joint family property of the plaintiffs and defendants I to 3. He did not give a specific finding on the question whether, on that assumption, the mortgage was binding on the plaintiffs. But he held, that even assuming that the mortgage was not binding, the sale that had been held in execution of the mortgage decree would be effective to convey to the purchaser the interests of the plaintiffs in the mortgaged property as well as the interest of defendants 1 and 2. On those findings, he allowed the appeal and dismissed the suit.

The first point for determination is whether the finding of the learned Subordinate Judge that the suit property was the separate property of the 1st defendant is capable of being maintained. The plaintiffs’ allegations regarding title to the property are these. The property belonged to a joint family consisting of defendants 1 and 3 and another person. In a partition between them, the property was allotted to the share of defendants 1 and 3, the other person becoming divided from them. The property was subsequently mortgaged by the 3rd defendant. In execution of the decree obtained on the mortgage, the property was purchased by a stranger. He did not take possession. The property remained in the possession of the fam