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Sreeman Raju Pathayam Veerasurappa Nayamvaru Vs. Errappa Naidu and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in(1906)16MLJ499
AppellantSreeman Raju Pathayam Veerasurappa Nayamvaru
RespondentErrappa Naidu and ors.
Cases ReferredMuttayan Ghettiar v. Sangili Vira Pandia I.L.R.
Excerpt:
- - 1. this decision was passed in may 1882, and the sale in the present case took place only in january 1883. there is no doubt but that the sale certificate (exhibit i) clearly states that the whole palayam was sold. property, and in fact, only brought this suit in 1897, indicates clearly, that he did not regard the sale as one that affected only the life interest of his father......and to recover possession of it with mesne profits. the plaintiff ' is the eldest son of the late poligar who died in 1885. the palayam was sold in execution of a mortgage decree obtained against the late poligar in 0. st no. 15 of 1875; and was purchased in february 1882 by the mortgagee, the late kotha nanjappa. the defendants nos. 2 to 14 are the representatives of this nanjappa. the 1st defendant (who is a younger son of the late poligar by a junior wife) purchased the palayam in 1893 from the heirs of kotah nanjappa. thus the title of all the defendants depends on the validity and effect of the execution sale in 1883, and it is this which the plaintift attacks. his case is that the palayam was impartible and inalienable by custom and by reason of its character as a military.....
Judgment:

1. In this suit the plaintiff appellant seeks to establish his right to the Sagalur Palayam in the Salem District, and to recover possession of it with mesne profits. The plaintiff ' is the eldest son of the late Poligar who died in 1885. The palayam was sold in execution of a mortgage decree obtained against the late Poligar in 0. St No. 15 of 1875; and was purchased in February 1882 by the mortgagee, the late Kotha Nanjappa. The defendants Nos. 2 to 14 are the representatives of this Nanjappa. The 1st defendant (who is a younger son of the late Poligar by a junior wife) purchased the Palayam in 1893 from the heirs of Kotah Nanjappa. Thus the title of all the defendants depends on the validity and effect of the execution sale in 1883, and it is this which the plaintift attacks. His case is that the Palayam was impartible and inalienable by custom and by reason of its character as a military tenure. That the late Poligar, therefore, had only a life interest in it, only this interest could have passed and did pass to the defendants in consequence of the sale in execution, and that on the death of the late Poligar in 1885 the Palayam passed to him (the plaintiff) as his eldest son.

2. In the lower Court the plaintiff also pleaded that the sale was in execution of a decree obtained for a debt contracted for immoral purposes, and was, therefore, not binding on him, but there was no evidence to support this plea and it was abandoned in this Court. In point of fact the debt was mainly one that had been declared in O.S. No. 2 of 1837 against the plaintiff's grandfather, long before the birth of the plaintiff and to a small extent it was money borrowed the plaintiff's father for payment of peishcush due on the estate. As to the contention that the Palayam was by custom and by reason of its tenure inalienabte, we may say that there is no ' Sufficient Evidence to prove any such special custom or that the estate was held on condition of military service and was therefore inalienable. The Subordinate Judge has dealt with these questions fully and we concur in his conclusions. He has moreover, shown that in the past considerable alienations liave in fact, taken place without objection on the part of those who would have been interested to object if the estate had been inalienable.

3. In these circumstances even if the plaintiff as a son were a co-parcener with the late Poligar his interest would be liable to be sold. But it is now settled law Sartaj Kuari v. Deoraj Kuari I.L.R. A. 272 and Sri Baja Bow Venkata Surya Maheepate Ramakrishna Rao Bahadur v. The Court of Wards I.L.R. M. 383 that the owner for the time being of an impartible estate such as this Palayam admittedly has 4;he full proprietary title, and the son has no such -coparcenary interest by birth as he would have under the Mitak-shara law in ordinary ancestral property.

4. The appellant, however, contends that even if the estate were liable to alienation, the sale relied on did not, in fact extend to more than 'the right, title and interest' of the late Poligar, and that those words must be construed with reference to the law as it was then understood to be by the parties ; that a long course of decisions prior to Sartaj Kuari's case1 and The Pittapore case? had held than an impartible estate was also inalienable, and that, in consequence, the holder of such an estate could not encumber it after his own life. The appellant argued that this was the view of all parties when the sale of the estate took place and that therefore, only the life interest of the Poligar in the estate was intended to be sold and was sold. He relied on the recent decision of the Privy Council in the Kannivadi case. Abdul Aziz Khan v. Appayasami Naicker.I.L.R. M. 13

5. The principle, however, laid down In that case does not affect the present case, for, the debt in the present case was, as we have already seen, one incurred for necessary purposes such as would bind the interest of the son even if the property were ordinary ancestral joint property of the family. Moreover, in the case of Muttayan Chetty v. The Zemindar of Sivagiri I.L.R. 6 M.1, it was laid down by the Privy Council that the estate which a son takes by heritage from his father constitutes assets by descent for the payment of his father's debts not incurred for any immoraf purposes that such an estate may be attached and sold in execution of a decree upon such a debt and the fact that it is an impartible estate does not alter the case Muttayan Ghettiar v. Sangili Vira Pandia I.L.R. 6 M. 1. This decision was passed in May 1882, and the sale in the present case took place only in January 1883. There is no doubt but that the sale certificate (Exhibit I) clearly states that the whole Palayam was sold. It was the whole Palayam which was mortgaged (Exhibit VI) and the Exhibits Y and Z show that it was the full proprietary right in the Palayam which. the judgment creditor claimed to sell and which apparently 'the Court attached and intended to sell. No doubt in the sale proclamation (Exhibit CC) it is stated that ' the privileges, the rights and the interests which the said defendant above possesses in respect of the property will be sold.' This is the English translation of the vernacular version of the clause in the Civil Procedure Code of 1859 which required that only the right, title and interest of the judgment debtor' should be sold. In the translations the word ''only' has been transferred so as to qualify the word 'defendant,' instead of qualifying the phrase 'right, title and interest'. No doubt at the time of the sale (1877) the Code of 1877 had just come into force and in it the clause requiring the Court to sell 'only the right, title and interest of the judgment debtor' was omitted, but the old practice of inserting these words as a common form continued in many courts for some time after 1877, and it has been frequently held that this pharse does not necessarily imply that the interest sold is less than full proprietary interest. In the present case we agree with the Court below in thinking that it was the full proprietary interest which was intended to be sold and which was sold.

6. The fact that though the late Poligar died in 1885, the plaintiff did not then claim the. property, and in fact, only brought this suit in 1897, indicates clearly, that he did not regard the sale as one that affected only the life interest of his father.

7. We accordingly hold that the suit was rightly dismissed and we dismiss the appeal with costs.


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