ORDER OF REFERENCE GOVINDA MENON AND KRISHNASWAMI NAYUDU, JJ.

Dated 2nd April, 1952 :

GOVINDA MENON, J. :- The second appeal and the memorandum of cross-objections raise the same point as tooth the appellant and the cross-objector were plaintiffs 1 and 2 respectively in the court of first instance. The suit was laid on the allegation that the first defendant as an assignee from the second defendant trespassed upon the suit properties while they were in the possession of the plaintiffs and the relief claimed was that the plaintiffs may be given possession of the suit properties and a decree against the first defendant for past and future mesne profits. Both the lower courts have dismissed the suit and hence this second appeal and memorandum of cross-objections.

2. The father of the plaintiffs and his brother were jointly running a chit fund as stakeholders. According to the terms of the chit fund transaction, the chit was to run for about a period of 12 years with one chit being auctioned every year. The subscription for a ticket was Rs. 750 and at the auction the person who bid for the lowest amount got the prize, it was in the nature of the usual auction chit fund, the details of which are unnecessary to elaborate here. Ex. D. 3 dated 14-3-1922 is the memorandum of agreement signed by the plaintiffs father and his brother and it contains the stipulations under which the chit was to run, Ex. B. 4 is the security bond executed by the stakeholders in favour of the ticket-holders giving the family property as security for the proper conduct of the chit and securing the subscribers the amount subscribed by them.

There was no complaint regarding the conduct of the chit till the 10th ticket and at the tenth auction the ticket was purchased jointly by two persons, the 2nd defendant Venkataramana Aiyar and another Palani Goundan who had each taken half a ticket in the chit. The amount of the bid was to be paid by both the plaintiffs father and his brother jointly. The plaintiffs father paid his half share to Palani Gounder but his brother did not pay the amount due from him to Venkataramana Aiyar, the other half ticket holder. O.S. No. 192 of 1931 in the court of the Subordinate Judge of Coimbatore was filed by Venkataramana Aiyar against the plaintiffs father and his brother for recovery of the amount due to him. Ex. D. 5 dated 9-10-1931 is a copy of the plaint in that suit. To that suit the other stakeholder who had also an interest in the transaction and in the properties given as security were not impleaded, the only two defendants being the plaintiffs father and his brother.

While the suit was pending on 14-10-1931 a creditor of the plaintiffs father presented an insolvency petition (Ex. B. 12) to adjudge the plaintiffs lather as insolvent, the allegation being that he had leased out his lands fraudulently to one Muthumarappa Goundan, thereby making it difficult for the creditors to realise the debts due from him. While this petition was pending and before the adjudication took place O.S. No. 92 of 1931 was decreed in favour of Venkataramana Aiyar on 5-12-1931. On 19-2-1932, the plaintiffs father was adjudicated insolvent, the result being that according to the provisions of the Insolvency Act the adjudication was deemed to take effect from the date of the presentation of the insolvency petition, i.e., on 14-10-1931. The Official Receiver in whom the properties of the plaintiffs father vested was not made a party to O.S. No. 192 of 1931 at all. By E.P. No. 709 of 1934, Venkataramana Aiyar brought to sale the properties which were given as security and the sale was held on 23-1-1935, Venkataramana Aiyar himself being the purchaser at the court auction. Ex. D, 5 is the sale certificate issued to Venkataramana Aiyar on 25-2-1935. Thereafter Venkataramana Aiyar assigned his right in the property to the first defendant who according to the plaintiffs is in unlawful possession of the suit properties, through the tenant the 11th d