SLP filed before Supreme Court against order of dismissal of appeal.

Srinivasan, J.

This appeal is at the instance of the 7th defendant in the suit O.S.No.2353 of 1981 on the file of the VII Assistant Judge, City Civil Court, Madras. The suit was filed by respondents 1 and 2, sons of the K.Subbarayalu Chetty, who was the first defendant in the suit. He died during the pendency of the suit. Subbarayalu Chetty had two wives, Annapoornammal and Saradambal, who were defendants 11 and 10 respectively in the suit. Through the former, he had three daughters and a son, who were defendants 13, 15, 16 and 4 respectively. Through the latter he had four sons, two of them being the plaintiffs and the other two were defendants 2 and 3. There were two daughters, who were defendants 12 and 14. The third defendant died pending suit and his wife and children were brought on record as defendants 24 to 26. The 5th defendant was a mortgagee of item No.l of plaint ‘A’ Schedule. That is the only item which is the subject matter of this appeal. The 7th defendant/ appellant was a purchaser of the said item of property in an auction held by the official assignee , Madras, on 15.11.1973 pursuant to an order of this Court made in Application No.625 of 1973 in I.P.No.85 of 1972. The sale was confirmed by this Court on 3.12.1973 and a sale deed was executed by the official assignee in favour of the appellant on 19.12.1973.

2. The present suit was filed for declaration that the official assignee was not entitled to sell the share of the plaintiffs in the properties described in Schedule ‘A’ to the plaint and in any other assets of the joint family for payment to the creditors of defendants 1 to 3 being the insolvents in I. A.No.85 of 1972, for a declaration that the sale held on 15.11.1073 with respect to item No.l of plaint ‘A’ Schedule by the official assignee in public auction was void and not binding on the plaintiffs and for a declaration that the mortgage deed dated 19.11.1969 with respect to the said property in favour of the fifth defendant was not valid and binding on the plaintiffs. In short, the case of the plaintiffs was that the properties belonged to the joint family of the first defendant, his father and brother and in a family partition dated 15.11.1956, the suit properties were allotted to the first defendant. The first defendant was conducting a business in partnership with the second defendant. On 19.11.1969, a mortgage was executed by defendants 1 and 2 in favour of the fifth defendant for a sum of Rs.35,000. The debt was an avyavaharika one and not binding on the plaintiffs, who were minors at that time. The step-mother of the plaintiffs, purporting to act as their next friend, filed a suit O.S.No.6994 of 1972 on the file of the City Civil Court, Madras for partition and separate possession. The binding nature of the mortgage in favour of the fifth defendant was not questioned. The suit was filed on 1.7.1972. On the very next day, the creditors of the first defendant filed I.P.No.85 of 1972 for adjudicating defendants 1 to 3 as insolvents. On 30.11.1972 the first defendant attained majority. There was a preliminary decree for partition of half share of the plaintiffs in that suit on 28.7.1973. On 24.8.1973, defendants 1 to 3 were adjudicated as insolvents by this Court. In the final decree proceedings in the partition suit, orders were passed for selling the subject-matter of this appeal in auction for the purpose of discharging the mortgage debts. At that stage, the official assignee applied to this Court for staying the auction. In that application, by consent of parties, the court directed sale of the properties by the official assignee in public auction by order dated 24.9.1973. The order of adjudication passed by this Court in the insolvency proceedings had the only effect of vesting the shares of defendants 1 to 3 in the joint family properties with the official Assignee and the latter had not right whatever to sell the shares of the plaintiffs and the other sons of the first defendant, wh