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Velliyammal and ors. Vs. Kaisha Chetti - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai
Decided On
Judge
Reported in(1882)ILR5Mad61
AppellantVelliyammal and ors.
RespondentKaisha Chetti
Cases ReferredDeendyal Lal v. Jugdeep Narain Singh
Excerpt:
hindu law - result of full bench rulings in ponnappa pillai v. pappuvayyangar and in gangulu v. ancha bapulu--rights of purchaser of coparceners' interest in partition suit-between coparceners. - .....l.r. 1 indap 321 is binding on this court, and that, where there has been a decree against the father for debt, and the right, title, and interest of the father in ancestral property has been sold under the decree, and the purchaser has been placed in, possession of the entire mass of the property advertised for sale in place of the mere interest of the judgment-debtor in the property, which was all that was advertised to be sold, a son, desiring to obtain his share in the property, which by an error in execution has thus got into the possession of the purchaser, cannot avail himself of the decision of the judicial committee in deendyal lall v. jugdeep narain singh l.r. 4 indap 252 :i.l.r. 3 cal. 198 which, so far as we are aware, has not been declared to be no longer binding on the.....
Judgment:

Innes, J.

1. In the Petition 357 of 1879 we were asked to review our decision in Second Appeal 558 of 1878, with reference to the Full. Bench rulings of the High Court in Second Appeals 412 of 1879, and 703, 704, and 705 of 1878, I.L.R. 4 Mad. 1. 73.

2. The suit was a partition suit in which plaintiff, while seeking his share in certain family property in possession of the family, also prayed for a share in certain other property that had been purchased in execution of a decree against his father and was in possession of the purchaser.

3. As we understand the Full Bench rulings, it was held by the majority of the Court that the decision of the Privy Council in Girdharee Lall v. Kantoo Lall and Girdharee Lall v. Muddun Thakoor L.R. 1 IndAp 321 is binding on this Court, and that, where there has been a decree against the father for debt, and the right, title, and interest of the father in ancestral property has been sold under the decree, and the purchaser has been placed in, possession of the entire mass of the property advertised for sale in place of the mere interest of the judgment-debtor in the property, which was all that was advertised to be sold, a son, desiring to obtain his share in the property, which by an error in execution has thus got into the possession of the purchaser, cannot avail himself of the decision of the Judicial Committee in Deendyal Lall v. Jugdeep Narain Singh L.R. 4 IndAp 252 :I.L.R. 3 Cal. 198 which, so far as we are aware, has not been declared to be no longer binding on the Courts, and he is not entitled to recover his share unless he can show that the debt for which a decree was obtained against the father without joining the son was an illegal or immoral debt.

4. The only distinction to be drawn between the judgment-debt of the father in the present case and that in the case of Deendyal Lal v. Jugdeep Narain Singh is that in the last-named case the decree was a mere money-decree, while in the present case the decree against the father was for a sum certain, and in default of payment the amount was to be levied by sale of the property hypothecated; but that circumstance, as the Judicial Committee observe in that judgment, makes no difference in the rights of the purchaser who purchases the right, title, and interest of the judgment-debtor.

5. We are bound by the ruling of the Full Bench. Plaintiff has not even alleged that the debt incurred by his father was illegal or immoral, and we must grant the review prayed and, reversing the decree of the Subordinate Judge, restore that of the District Munsif which allowed plaintiff his share only in the other family property not affected by the decree against the father, viz., in the property scheduled as No. 1.

6. In Nos. 2 to 63 plaintiff is debarred from obtaining a share.

7. The petitioners shall have the costs of this petition and of the second appeal


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