Purpose of the agreement executed.

The plaintiff, who was unsuccessful in both the lower Courts, is the appellant in this second appeal. He sued to recover possession of the properties described in Schedule A, appended to the plaint, for an account of the management by the 1st defendant of the properties specified in Schedule B and of the sums received by him by sale of the properties as per Schedule C. The 2nd defendant is the father and the plaintiff is the son and they constitute members of a joint family. The 1st defendant is the brother-in-law, i.e., the sister’s husband of the 2nd defendant. The family of the plaintiff and the 2nd defendant was indebted to several people by 1930. On 12th December, 1930, the 2nd defendant and the plaintiff executed in favour of a third party a trust deed for discharging the debts of the family. After the lapse of two years, it was discovered that the trust created was not very useful to achieve the object and it was consequently cancelled on the 27th of August, 1932. On the 29th of August, 1932, three sales were effected by the father and the son to discharge certain debts. There yet remained several debts, which had to be discharged. Within three days after the cancellation of the trust deed, i.e., on the 30th of August, 1932, what purports to be a sale deed Exhibit D-1 was executed by the plaintiff and the 2nd defendant in favour of the 1st defendant for a stated consideration of Rs.29,500 and the properties conveyed under the deed are the properties specified in Schedule B appended to the plaint. The deed covered the entire properties of the family then remaining. The consideration, as stated in the deed, was the obligation, which the 1st defendant undertook to discharge the debts of the family aggregating to Rs.29,500. After the execution of the sale deed, the 1st defendant sold certain properties comprised in the deed and the particulars of the sales effected by him are given in Schedule C attached to the plaint. After the sale, there were still some properties left, which are described in Schedule A: and by the sales effected by the 1st defendant, all the debts of the family were discharged and there were no more debts. The plaintiff now sues to recover the balance of the property left unsold and described in Schedule A and also claims an account of the management of the properties by the 1st defendant and also of the sale proceeds received by the sales effected by the 1st defendant and particularised in Schedule C. The basis on which the claim is rested is set out in paragraph 8 of the plaint. That portion of the plaint was extracted in the two judgments of the Courts below and it is also printed in the pleadings in the case. In 1939, the plaintiff’s sons through their mother as next friend instituted the suit O.S.No.61 of 1939, District Munsif’s Court, Karur, in forma pauperis for partition of the plaint schedule properties and for allotment of 3/8 share of the properties to the plaintiffs free of encumbrances. In that suit, the alienations made by the plaintiff and the 2nd defendant were impeached as not binding on the plaintiffs That suit was however unsuccessful and was dismissed on the 30th of March, 1940. The 1st defendant in the written statement filed by him in the present suit pleaded that the sale was an absolute sale, which was fully supported by consideration and that it was not open in law to the plaintiff and the 2nd defendant to plead that a trust was created thereby and that they were also precluded from adducing oral evidence to contradict or vary the terms of the sale deed. He also raised the further plea that the present suit was barred by res judicata by reason of the decision in O.S.No.61 of 1939. The trial Judge overruled the plea of res judicata and it was not repeated in the lower appellate Court. The main issue in the case, which was heard as a preliminary issue by the courts below was whether the plea that the document dated 30th August, 1932, is a trust is open to the plaintiff.