1. Both these appeals arise out of the decision in O. S. No. 45 of 1964 on the file of the Sub-Court, Vellore, A. S. No. 389 of 1969 has been filed by defendants 18 to 22 and A. S. No. 103 of 1970 has been filed by the plaintiff in the said suit.
2. The said suit was one for partition of the lands described in Schedule C to the plaint into four shares and of the house described in Schedule B and the properties described in Schedule D into five shares and for allotting the plaintiff one such share after setting aside the partition deed dated 20-4-1951 and the alienations of some of the suit properties by defendans 1 to 3, if need be and for directing the first defendant to render accounts in respect of the joint family properties which were in her management from 1-10-1951 till the date of the filing of the suit. The plaintiff and defendants 2 and 3 are brothers, being the sons of one Vengan Chetti, who died on 19-11-1944, by his third wife, the fourth defendant. Vengan Chetti had another son, Perumal Chetti by his second wife and the said Perumal Chetti died on 1-4-1951 and the first defendant is his widow.
3. According to the plaintiff the properties described in Schedules B, C and D to the plaint are properties left by Vengan Chetti and that on his death the plaintiff and defendants 2 and 3 and the deceased husband of the first defendant each became entitled to a one-fourth .share in the agricultural properties and a one-fifth share in the non-agricultural properties, the fourth defendant being entitled to the balance one-fifth share in the non-agricultural properties. After Vengan's death, the deceased husband of the first defendant being his eldest son was the manager of the joint family. On his death the first defendant, his wife, continued to manage the properties belonging to the joint family. On or about 20-4-1951, a registered partition came to be entered into between the first defendant, second defendant and the fourth defendant acting as guardian of the plain-tiff and the third defendant who were the minors. Jt is the case of the plaintiff that the said partition brought about by the partition deed dated 20-4-1951, was unequal, unfair and unjust, that though the plaintiff and defendants 2 to 4 were together entitled to a 4/5th share in the non-agricultural properties and a 3/4th share in the agricultural properties, the first defendant had been allotted half share in the joint family properties absolutely for herself, that the first defendant has played a fraud on the plaintiff's mother and took a much larger share than to what she was legally entitled to, that the plaintiff's mother was not competent to act as his guardian and she did not properly safeguard the minor's interest that though the plaintiff's mother was entitled to a share in the properties she was not given any share in the partition, that valuable properties had been allotted to the first defendant while useless properties have been allotted to the share of the plaintiffs and defendants 2 and 3, that most of the moveables belonging to the joint family were not divided but were allowed to be in the possession of the first defendant, that fictitious debts were allotted to the share of the first defendant while real debts were allotted to the share of the plaintiff and defendants 2 and 3 and that, therefore, the partition deed cannot be taken to be valid and binding on the plaintiff.
4. Perumal Chettiar while he was the manager of the family had sold the lands described as items 14 to 16 in the plaint C Schedule to the 12th defendant under a registered sale deed dated 12-11-1948 for an alleged consideration of Rs. 3,000. The plaintiff's case is that the said sale is not supported by consideration nor was it made for any necessity or benefit of the family, that there was no need to sell any property belonging to the joint family as the income therefrom was considerable and that the said alienation is not binding on him or his share in the properties.
5. Subsequent to the death of Perumal Chettiar, defendants 2 and 3 have alienated the lands described in items 6 to 12 in the plaint C Schedule and the houses described as items 3 and 6 in the plaint B Schedule to defendants 5 to 10 and 13 under various sale deeds. The first defendant had sold to the 11th defendant the oil mill and the machinery and the building described as item 1 of the plaint D Schedule with a view to defraud and defeat the rights of the plaintiff. According to the plaintiff the said sale deeds executed by defendants 1 to 3 are all fraudulent, void and not binding on him as they are not supported by consideration and they have been made without any necessity or benefit and that the recitals as to consideration in those sale deeds are all false and fictitious.
6. Defendants 2 and 3 had executed a mortgage in favour of the 7th defendant. The plaintiff alleges that the said mortgage is not also supported by consideration and is, therefore, not binding on him.
7. The 13th defendant had sold the house described as item 3 in the plaint B Schedule to one Parthasarathi Chetti and he having died, his legal representatives defendants 18 to 22 are in possession and enjoyment of the same. The plaintiff states that the said sale also is not binding on him.
8. The house described as item 4 in plaint B Schedule has been sold by defendants 2 to 4 during the minority of the plaintiff to one Mrs. Francis after taking an agreement of reconveyance in their favour. One Padmavathi Ammal, the 23rd defendant has purchased the right of reconveyance in court auction. Subsequently she purchased the said property on 24-4-1965. The plaintiff contends that the said sale is not binding on him as the consideration for the transaction is quite inadequate and that there was no necessity for the said sale.
9. Subsequent to the institution of the suit, the first defendant died and her legal representatives, defendants 14 to 17 have been brought on record.
10. Defendants 14 to 17, the legal representatives of the first defendant contended as follows: After the death of Perumal Chettiar, the first defendant was not in management of the family properties and it is the fourth defendant who was in management. Sometime after the death of Perumal Chetti all the heirs of Vengan Chetti desired to effect an amicable partition of the family properties. At the instance of Panchayatdars a registered partition deed dated 20-4-1951 was executed between the parties. The fourth defendant did not act negligently in the said transaction and no fraud was played upon her by the first defendant or by the Panchayatdars. The division is fair and equitable and, therefore, the plaintiff is not entitled to have it set aside. Even otherwise, the said partition deed has been acted upon by all the parties including the plaintiff. Some of the properties having been alienated to strangers by the sharers, it is not possible to go back on these transactions. The plaintiff having been born on 18-9-1939, the present suit questioning the partition is barred by limitation as it has been filed more than three years after his attaining majority. The third defendant filed O. S. No. 373 of 1956 in the court of the District Munsif Vellore, for the same relief but it was not prosecuted. The plaintiff was a party to the said suit and, therefore, the present suit was incompetent. As regards moveables, their case was that the first defendant was not in possession of any of the moveables, cash, jewels, and other valuables belonging to the family and it is defendants 2 to 4 who were in possession of the same and are accountable.
11. Defendants 2 to 6 remained ex parte. The seventh defendant resisted the suit contending that the mortgage in his favour was executed by the plaintiff along with defendants 2 and 3 for Rupees 2,500 and the borrowing was for necessary purpose. Hence it is binding on the plaintiff. In any event, the suit is barred by limitation since the plaintiff was more than 21 years of age on the date of the filing of the suit.
12. The 8th defendant contested the suit contending that defendants 2 and 3 who were minor members of the joint family sold the lands described as items 9 to 12 in the plaint C Schedule for Rupees 2,000 on 17-11-1961, that the sale was made for raising funds for installing a pump set to a well belonging to the family situate in S. No. 301 and for purchasing accessories thereto and for the discharge of a decree debt due to one Periasami Chettiar, that Rs. 500 was paid to in cash on the date of the execution of the sale deed and the balance of Rs. 1,500 was paid in the presence of the Sub-Registrar to defendants 2 and 3 at the time of the registration and, therefore, the plaintiff cannot seek to set aside the said alienation. The 8th defendant who is also a purchaser of items 6. 7 and 13 of plaint C Schedule at Rs. 2,000, who had in turn purchased the same from defendants 2 and 3 by a sale deed dated 7-2-1958 has filed an additional written statement stating that the sale of these items was made by defendants 2 and 3 and the 4th defendant acting as guardian of the minor plaintiff for the purpose of discharging the debts incurred by the family for litigation and, therefore, the said sale is binding on the plaintiff.
13. The 9th defendant defended the suit contending that the mortgage in his favour was executed by the second defendant in his capacity as joint family manager on 25-5-1956 for discharging family debts and agricultural expenses and, therefore, it is binding on the plaintiff.
14. The 11th defendant resisted the suit contending that she is a bona fide purchaser of the oil mill described as item 1 of the plaint D Schedule and that even if there is a re-partition, the said item should be allotted to the share of the alienor in equity.
15. The 12th defendant who is the purchaser of items 14 to 16 of the plaint C Schedule contended that Perumal Chetti and the 4th defendant were in need of money, for their business and therefore they persuaded her and her husband to purchase the said items for Rs. 3,000 that subsequent to the purchase she had made considerable improvements to the land by levelling them and putting up a well at a cost of Rupees 2,000 and, therefore, the plaintiff is not entitled to question the sale and that in any event, she is entitled to get reimbursement of the cost of improvements.
16. The 13th defendant defended the suit contending that she has purchased item 3 of B Schedule to the plaint in court auction in pursuance of a decree obtained by one Parthasarathi Chetti in O. S. No. 143 of 1954 against the plaintiff and defendants 2 and 3. The legal representatives of the said Parthasarathi Chetti are defendants 18 to 22 and their case is that Perumal Chetti in his capacity as the manager of the joint family had become indebted to Messrs. T. Abboy Chettiar and Sons of Kancheepuram in the matter of purcahse of javuli, that the said debt was allotted to the share of the plaintiff and defendants 2 and 3 in the partition entered into in 1951, that Parthasarathi Chetti filed a suit against the plaintiff and defendants 2 and 3 in O. S. 143 of 1954 and obtained a decree, that in pursuance of the decree he brought item 3 of the plaint B Schedule for sale and the 13th defendant purchased it in court auction and took possession through court on 4-4-1957, that subsequently the 13th defendant transferred it to her deceased husband by a registered sale deed dated 11-7-1960 and that since then they are in possession of the same. Thus, the case of defendants 1, 3 and 18 to 22 is that the plaintiff being eo nomine party to the suit O. S. 143 of 1954 the Court auction sale is binding on him and, therefore, he is not entitled to question the validity of the same.
17. The 23rd defendant 'who is in possession of the house in item 4 of the plaint B Schedule has filed a written statement staging that the said item was sold by the plaintiff and defendants 2, 3 and 4 to one Pushpammal on 10-8-1957, that the vendee executed an agreement to reconvey the property on 26-8-1957, that subsequently the vendors exercised their option and sold the same to one Mrs. Francis executing an agreement to reconvey in favour of defendants 2 to 4, that subsequently Pushpammal obtained a decree against the plaintiff and defendants 2 to 4 in O. S. 8 of 1961 and in execution of the said decree brought the said right of reconveyance to sale and that she had purchased it in court auction on 26-8-1963. She therefore states that the plaintiff cannot challenge the various transactions. She also contended that she having been brought on record only on 12-3-1966, the claim as against her is barred by limitation.
18. On these rival contentions, the trial court framed as many, as 23 issues. Out of these issues, the substantial issues relate to the question of the validity and the binding nature of the partition deed and the question of limitation. After analysing the evidence adduced by the parties with reference to the various issues, the court below held on the main question that the partition brought about under Ex. A-8 dated 20-4-1951, between the first defendant, plaintiff and defendants 2 to 4 was unfair, unjust and unequal and is also prejudicial to the interests of the plaintiff who was a minor. It however held on the question of limitation that the suit to set aside the partition deed under Ex. A-8 not having been filed by the plaintiff within 3 years after attaining majority, the claim for setting aside the partition deed is barred by limitation but that the plaintiff's claim to a share in the joint family properties alienated by defendants 2 to 4 subsequent to the partition was not barred by limitation as the suit was well within 12 years of the date of alienation. On its view that the claim for setting aside the partition deed is barred by limitation, the lower court has not chosen to give any relief to the plaintiff for fresh partition as sought for by him. As regards the relief claimed as against the alienees from defendants 2 to 4 the lower court rejected the plaintiff's claim in respect of alienations of items 1, 2 and 4 of B Schedule and items 1 to 7 and 13 to 16 of C Schedule. The plaintiff has therefore filed A. S. 103 of 1970 against the decision of the lower court holding that the claim for setting aside the earlier partition deed under Ex. A-8 is barred by limitation as also the finding of the lower court in relation to items 1, 2 and 4 of B Schedule and items 1 to 7 and 13 to 15 of C Schedule. The plaintiff has not chosen to question the findings of the trial court in respect of other alienated items.
19. As against the finding of the lower court relating to the setting aside of the alienation of item 3 of B Schedule, defendants 18 to 22 have filed A. S. 389 of 1969 contending that the alienations made by defendants 2 and 3 to the 13th defendant is valid and binding on the plaintiff and that the subsequent alienation by the 13th defendant in favour of Parthasarathi Chetti was legal and valid.
20. Thus the main question that has to be considered in the plaintiff's appeal A. S. 103 of 1970 is as to whether the plaintiff can seek to set aside the earlier partition to which he was eo nomine a party beyond 3 years after attaining majority. The learned counsel for the plaintiff contends before me that once the partition is found to be unequal, unfair, unjust and prejudicial to the minor, it need not be set aside within three years of attaining majority but that it can be ignored altogether, and that in any event even if such a partition is to be set aside, the limitation has to start only from the date of the knowledge of the unfairness of the partition. The question is how far the above contention can be accepted.
21-22. As already pointed out, the lower court has given a finding that the partition under Ex. A-8 is unfair, unequal and prejudicial to the interests of the minors. This finding which is in favour of the plaintiff has not been challenged by the respondents or by the appellants in A. S. No. 389 of 1969. I have to, therefore, proceed on the basis of the said finding. The learned counsel, in support of his submission, that once the partition deed is found to be unfair and unequal, it can be ignored and no setting aside is necessary, refers to the following decisions:
In Lal Bahadur Singh v. Sispal Singh (1892) ILR 14 All 498) certain members of the joint family partitioned the family properties among them in such a way as to give one member of the family who, at the time of the partition was a minor, less than the share to which he was entitled. The minor was represented in the partition by his uncle who was not a natural guardian. The minor, on attaining majority brought a suit for recovery of the full share to which he was entitled. It was held by a Division Bench that the suit was not one for relief on the ground of fraud or mistake, inasmuch as the partition could not under the circumstance affect in any way the rights of the minor and that therefore the suit was not subject to the limitation of three years prescribed by Articles 95 and 96 of the second Schedule of Act. 15 of 1877. But said ruling is based on the special facts of that case where the minor was not bound by his uncle's act, that the uncle had no authority to barter away the minor's rights and, that therefore, the minor can ignore the partition entered into by his uncle.In Ratham Chettiar v. S. M. Kuppuswami, a partition effected
between the members of a Hindu undivided family was challenged on the ground that it unfair, unjust and detrimental to the interests of certain minor co-parceners. The Supreme Court pointed out that when the partition is effected between the members of the Hindu undivided family which consists of minor co-parceners it is binding on the minors also if it is done in good faith and in bona fide manner keeping into account the interests of the minors, that where, however, a partition effected between the members of the Hindu undivided family which consists of minors is proved to be unjust and unfair and is detrimental to the interests of the minors, the partition can certainly be reopened, whatever the length of time when the partition took place, But this decision cannot be taken to be an authority for the proposition that wherever the partition is found to be unfair and unequal the same can be set aside without reference to the question of limitation. In the same decision the Supreme Court has pointed out:--
"It is true that minors are permitted in law to reopen a partition on proof that the partition has been unfair and unjust to them. Even so, so long as there is no fraud unfair dealing or overreaching by one member as against another, Hindu law requires that a bona fide partition made on the basis of the common consent of coparceners must be respected and is irrevocable."
In this case, in the partition under Exhibit A-8, the plaintiff was represented by his mother, the fourth defendant. The partition has also been acted upon. Even assuming that the partition is found to be unfair, unequal and unjust the plaintiff having been represented by his natural guardian is bound by the said partition until it is set aside at his instance on attaining majority. The above decision of the Supreme Court does not deal with the question of limitation for a suit to set aside a partition by a quondam minor but it only deals with the right of the quondam minor to have the partition set aside on the ground that the partition is unequal and unfair.
23. In Chanvirapa v. Danava ((1894) ILR 19 Bom 593) it was held that partition made by a mother as guardian of her minor son is valid, that if it is just and legal it will bind the minor, that when the minor arrives at full age, he can however have it set aside if it can be shown to be illegal or fraudulent, and that a suit to set aside a partition by a minor is governed by Article 91 or 95. Schedule II of the Limitation Act 15 of 1877 and must be brought within three years after the minor attained majority. In Balkishan Das v. Ram Narain Sahu (1903) ILR 30 Cal 738) the Privy Council observed:--
"The question upon which their Lordships have felt most difficulty is whether the document can be considered as binding upon the coparceners, who were minors at the date of it. But they think that in these proceedings they must treat it as binding upon them. There is no doubt that a valid agreement for partition may be made during the minority of one or more of the coparceners. That seems to follow from the admitted right of one co-parcener to claim a partition; and (as has been said) if an agreement for partition could not be made binding on minors a partition could hardly ever take place. No doubt if the partition was unfair or prejudicial to the minor's interests, he might, on attaining his majority, by proper proceedings, set it aside so far as regards himself." In Rangasayi v. Nagarathnamma, ILR 57 Mad 95 : (AIR 1933 Mad 890) a Full Bench of this Court pointed out that a valid partition could be made outside the Court by the members of a joint family though some were minors at that time, that it is open to the adult coparceners to express their intention to separate from others, that even though some coparceners are minors such intention to separate may be communicated to the mothers or other natural guardians of the minors, that a partition effected by the adult coparceners with the mothers or other natural guardians of the minor coparceners representing the minors would be a valid partition and would be binding on the minors though it would be open to the minors when they come of age to take steps to have such a partition modified if their proper shares of the joint family property have not been secured to them. From the above decisions it is clear that the plaintiff in this case cannot ignore the earlier transaction of partition to which he was eo nomine a party and proceed to ask for a fresh partition without setting aside the earlier partition either on the ground of fraud or illegality or on the ground that it is unfair and unequal and prejudicial.
24. If the earlier partition is to be set aside by the plaintiff, the question is as to what is the period of limitation for such a suit. According to the learned counsel limitation will begin from the date of knowledge of the illegality or unfairness and not from the date of the plaintiff attaining majority. It is said that the plaintiff became aware of the fact that the partition is unfair and unequal only on 16-2-1060. I am not inclined to agree with the learned counsel that the three years will not commence from the date of the plaintiff attaining majority. The minor, as soon as he attains majority should be taken to have knowledge of the transactions entered into by the guardian during his minority. Therefore, the plaintiff should be taken to have had knowledge of the transaction on his attaining majority. Therefore, the period of limitation before which he should file a suit for setting aside the document of partition will be three years of his attaining majority. I have to, therefore, agree with the Court below that the plaintiff cannot ignore or set aside the partition that took place under Exhibit A-8 as the suit has been filed on 2-7-1962, three years after his attaining majority. Though the plaintiff came forward with a case that his date of birth is 2-7-1941 the lower court has not accepted his case and it has specifically found that the plaintiff was born on 15-971939, and no material has been placed before this Court to take a contrary view. The next question is whether the plaintiff can challenge the alienations in relation to items 1, 2 and 4 of B Schedule and 1 to 7 and 13 to 16 of C Schedule and item 1 of D Schedule. A perusal of the partition deed Ex. A 6 indicates that items 1, 2 of B Schedule, items 1 to 5 of C Schedule and item 1 of D Schedule were allotted to the 1st defendant. So long as the partition stands without being set aside, the first defendant is entitled to deal with the properties allotted to her. Therefore, the alienations made by the first defendant of the items allotted to her cannot be questioned by the plaintiff unless he succeeds in setting aside the partition under EX A. 8. Therefore, the plaintiff's attack relating to the alienations of items land 2 of B Schedule and items 1 to 5 of C Schedule and item 1 of D Schedule has to be straightway rejected. As regard item 4 of B Schedule it is seen that this house property has been sold to one Mrs. Francis under Ex. B-21 by defendants 2 to 4 and the plaintiff as minor represented by the 4th defendant, retaining a right to repurchase it by paying a surn of Rs. 3950 between 10-6-1963 and 9-6-1965. It is not the case of the plaintiff that he had ever offered to Mrs. Francis or the 23rd defendant the subsequent purchaser the sum of Rs. 3950 and asked for a reconveyance of the property. The plaintiff has not chosen to exercise that right within the stipulated period after attaining majority. Therefore, he cannot now ask for any relief questioning the sale under Ex. B. 21. Items 6, 7 and 13 to 16 of plaint C Schedule are wet lands of an extent of 1.62 acres. These were sold by defendants 1 and 2 and the 4th defendant acting for herself and as guardian of the plaintiff to defendants 5 and 6 for a sum of Rs. 2000, under Ex. B. 12 dated 7-2-1858. Though this alienation has been questioned by the plaintiff, defendants 5 and 6 remained ex parte and they did not contest the suit presumably because they have executed Ex. B 11 dated 7-2-1958 in favour of the second defendant agreeing to reconvey the lands after the expiry of 7 years from the date of sale but before the expiry of 9 years for a sum of Rs. 2000. On 7-3-1962 the second defendant had executed Ex B 45 in favour of the 8th defendant agreeing to sale the lands to the latter for Rs. 7500. It is recited in Ex. B 15, that Rs. 2000 was paid to the second defendant by the 8th defendant as advance and that the balance of Rs. 5500 should be paid on or before 6-2-1965 and on such payment the second defendant should execute a sale-deed to the 8th defendant. On 4-2-1965, defendants 2, 3, 5 and 6 had executed Ex. B 16 in favour of the 8th defendant for a sum of Rs. 10875. The plaintiff has challenged the sale in favour of the 8th defendant on the ground that the said sale deed has been executed when he was actually a major and, therefore, the sale will not bind his share. But the property having been sold to defendants 5 and 6 by all the members of the family including the plaintiff who was represented by his guardian, the 4th defendant, the said sale will be binding on him. Subsequently, defendants 5 and 6 along with defendants 2 and 3 had executed the sale deed Ex. B 16 in favour of the 8th defendant. If the plaintiff was eo nomine a party to the earlier sale-deed Ex, B 12 dated 7-2-1958 the said sale deed will be binding on him unless he attacks the conduct of the guardian. Since the plaintiff has questioned the sale under Ex. B-16 only on the ground that he was a major at the time of the execution of that sale deed, he cannot challenge the earlier sale deed Ex B-12, in favour of defendants 5 and 6. Therefore, the view taken by the lower court that Ex B-16 having been executed by defendants 2 and 3 and 5 and 6 at a time when the plaintiff was a major will not bind his interest if any acquired under the agreement Ex. B-15 dated 7-5-1962 appears to be correct. The lower court has, however, felt that the binding nature of the Ex. B-15 was not necessarily to be considered in this suit as the only question to be considered is whether the sale under Ex. B-12 in favour of defendants 5 and 6 is valid and binding on the plaintiff. The consideration mentioned in Ex. B-12, has gone for the discharge of the debts incurred in connection with the litigation between the executants and the first defendant and for meeting further expenses. Two attestors to Ex. B-12 sale deed and the 6th defendant have been examined respectively as D. Ws. 3, 4 and 5 with reference to the alienation under Ex. B-12. On the basis of their evidence the lower court found that the sale was not for an adequate price as alleged by the plaintiff and that it was for binding purposes. In this view, the lower court held the sale under Ex. B.12 to be binding on the plaintiff. Since Ex. B-12 was followed up by an agreement for reconveyance Ex. B-11, the plaintiff is entitled to enforce his rights under Ex. B-11. But under Ex. B-11, the properties have to be repurchased by the vendors after 7-2-1965 and before 6-2-1967. It is not the case of the plaintiff that he offered to repurchase the property by tendering the price and that defendants 5 and 6 or the 8th defendant refused the tender. The plaintiff not having exercised his option within the time stipulated, has no right to claim reconveyance of these properties. The plaintiff is not therefore entitled to any relief in respect of the said items of properties. App No. 103 of 1970 has, therefore, to fail.
25. App. No. 389 of 1969 has been filed by defendants 18 to 22 as regards item 3 of B Schedule which has been decreed by the lower court in favour of the plaintiff. This item has been brought to sale by one Parthasarathi Chetti in O. S. 143 of 1954 filed against the plaintiff and defendants 2 and 3 and the 13th defendant had purchased the same in court auction. Ex. B-27 delivery receipt dated 4-4-1957 clearly shows that . the 13th defendant took possession of the property through court. Later, the 13th defendant had sold the property to the decreeholder Parthasarathi Chetti by a registered deed dated 11-7-1960. The plaintiff has challenged not only the court auction sale in favour of the 13th defendant but the subsequent transfer by him in favour of Parthasarathi Chetti. Defendants 16 to 22 are the legal representatives of Parthasarathi Chetti. Parthasarathi Chetti's wife, and 18th defendant has been examined as DW 9. She has deposed that her husband filed a suit against the plaintiff and defendants 2 and 3 and obtained a decree and in execution of that decree item 3 of B Schedule was brought to sale and the 13th defendant purchased it in court auction and later on conveyed it to her husband. The evidence of DW 9 has been rejected by the court below on the ground that she does not know personally about the suit conducted by her husband and, therefore, her evidence cannot be accepted. It is also pointed out by the lower court that no extract from the suit register nor a copy of the decree passed in O. S. 143 of 1954 on the file of the Court of the District Munsif, Kancheepuram, has been filed and that, therefore the court auction sale in favour at the 13th defendant cannot be taken to be binding on the plaintiff. I do not see how the lower court came to the conclusion that the court sale in favour of the 13th defendant has not been established. It may be that DW 9 had no personal knowledge about the proceedings conducted by her husband against the plaintiff and defendants 2 and 3. But that does not prevent the court from considering the other documents in the case to find out whether there was in fact a decree against the plaintiff and defendants 2 and 3 and whether in execution of that decree item 3 was sold to the 13th defendant in court auction. Ex. A-8 the partition deed dated 20-4-1951 clearly shows that the debt due to Subbarayalu Chetti and Co. was allotted to the plaintiff and defendants 2 and 3. Parthasarathi Chetti claims to be a member of Subbarayalau Chetti and Co. Whatever it be, Ex. B-27 shows that the 13th defendant took possession of the property purchased by him in court auction in E. A. 442 of 1957 in O. S. 143 of 1954 on the file of the district Munsif, Vellore, on 4-4-1957. Therefore, having regard to the fact that the plaintiff was eo nomine party in the suit in O. S. 143 of 1954, and the execution proceedings thereon, the plaintiff cannot now challenge the validity of the decree or the said court auction sale. On a due consideration of the matter, I am of the view that the lower court is in error in upholding the plaintiff's claim as regards item 3 of B Schedule defendants 18 to 22 have acquired a valid title in relation to the item by a transfer from the 13th defendant who had in turn purchased the same in court auction in execution of a decree obtained against the plaintiff and other defendants by the husband of the 18th defendant. A. S. No. 389 of 1969 has, therefore, to be allowed.
26. The 7th respondent in A.S. 183 of 1970 has filed a memorandum of cross objections and those objections relate to three minor matters: (1) the disallowance of his cost of Rs. 406-50 by the court below, (2) one-third share in the well in the third item of C Schedule which has been declared in favour of the plaintiff, and (3) the decree of the lower court is not in accordance with the judgment in that though the operative part of the judgment says that the suit as against the 8th defendant and item 13 is dismissed 8th defendant's name and item 13 do not find a place in the decree. As regards the matter relating to the costs, I am not inclined to interfere with the discretion of the court below in not awarding costs to the 8th defendant. As regards the second matter, since the suit has been dismissed as against the 8th defendant, the 7th respondent in A. S. 103 of 1970, he cannot complain that the lower court should have decided as regards one-third share in the well in item 3 of C Schedule. As regards the third matter it appears to arise out of an obvious mistake. The last paragraph of the judgment clearly shows that the suit as against the 8th defendant is dismissed. But the decree does not refer to the 8th defendant. Similarly item 13 is found omitted in the decree. Therefore this objection of the cross objector has to be upheld. Therefore, the decree of the lower court will be modified to indicate that the suit as against the 8th defendant as also item 13 is also dismissed so as to bring it in accord with the judgment. The cross objections areordered accordingly.
27. In the result, A. S. 103 of 1970 is dismissed with costs of contesting defendants, one set. A. S. 389 of 1969 is allowed with costs. The cross-objections in A. S. 103 of 1970 is partly allowed. There will, however, be no order as to costs in the memorandum of cross objections. C. M. P. 10696 of 1075 is dismissed as unnecessary.