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A.C. Chenchayya and ors. Vs. K. Kondiah and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1925Mad300
AppellantA.C. Chenchayya and ors.
RespondentK. Kondiah and ors.
Cases ReferredGnanambal v. Purvathi
Excerpt:
- - 1. in this case, the plaintiff who bad obtained a decree against the 3rd defendant, attached the plaint property, as belonging to the 3rd defendant, but ha was mot by a claim petition put in by defendants 1 and 2, claiming that the property belonged to them and that the 3rd defendant had no interest in it. veera reddi's suit finally failed. it is, however, contended that so far as the equity of redemption is concerned, it is still in the 3rd defendant, on the footing that the gift to veera reddi is not a good gift. of course, if the gift to veera reddi would be shown to be a bad gift, it will not be binding as against this decree-holder. but the difficulty in the way of the plaintiff is that he has made no attempt in this case, to show that the gift to veera reddi is a bad one......originally, the property belonged to the 3rd defendant; but he made a gift of it in 1912, to one veera reddi alias musali reddi. the donee then mortgaged the property, by way of simple mortgage, to defendants 1 and 2. it would seem that on a former occasion this property was attached as the property of the 3rd defendant, by another decree-holder, one subbarayudu. at that time, both veera reddi and the present defendants 1 and 2 put in separate claim petitions, urging their different interests, in the property. as regards the 1st and 2nd defendants, their claim was allowed, on the ground that whatever defect there might be, as regards veera reddi's title, such defect did not affect the mortgage right of defendants 1 and 2, as they were bona fide purchasers for value; their claim was.....
Judgment:

Krishnan, J.

1. In this case, the plaintiff who bad obtained a decree against the 3rd defendant, attached the plaint property, as belonging to the 3rd defendant, but ha was mot by a claim petition put in by defendants 1 and 2, claiming that the property belonged to them and that the 3rd defendant had no interest in it. That claim was allowed and this suit is brought by the plaintiff, to have that order sot aside and to have it declared that the property really belonged to the 3rd defendant and is liable to be attached and sold for the decree debt. The lower Courts have dismissed the plaintiffs' suit.

2. Originally, the property belonged to the 3rd defendant; but he made a gift of it in 1912, to one Veera Reddi alias Musali Reddi. The donee then mortgaged the property, by way of simple mortgage, to defendants 1 and 2. It would seem that on a former occasion this property was attached as the property of the 3rd defendant, by another decree-holder, one Subbarayudu. At that time, both Veera Reddi and the present defendants 1 and 2 put in separate claim petitions, urging their different interests, in the property. As regards the 1st and 2nd defendants, their claim was allowed, on the ground that whatever defect there might be, as regards Veera Reddi's title, such defect did not affect the mortgage right of defendants 1 and 2, as they were bona fide purchasers for value; their claim was allowed under the last clause of Section 53 of the Transfer of Property Act. Against the order on the claim petitior, no suit was filed by any one ; but as regards the adverse order against Veera Reddi, he filed a suit against the decree-holder, Subbarayudu. Defendants 1 and 2 had nothing to do with that suit and they were not made parties to it. Even before the claim petitions were brought, defendants 1 and 2 had obtained a preliminary mortgage decree, on their mortgage against Veera Reddi only. Subsequent to the claim petition, they seem to have got a final decree in the matter and thus executed that decree against Veera Reddi and the property was brought to sale and purchased by one of the defendants. Veera Reddi's suit finally failed. There was subsequently again an attachment by the same decree-holder of the property, as 3rd defendant's property. By that time, the Court auction had taken place and the sale to one of the defendants had been complete. The defendants put in a claim petition again and urged their right by purchase aganist that attachment. That claim was again allowed and no further steps were taken, to contest that order on the claim petition. Now the plaintiff, who is another decree-holder, attaches the property' again as the 3rd defendant's. He contends that as he was not a party to any of the previous proceedings, he is not bound by these proceedings and therefore, it is open to him to show now that the 3rd defendant is still the owner of the property and he is entitled to attach the property as the 3rd defendant's. I am prepared to concede that this decree-holder, as a new creditor, is not bound by the previous proceedings, as he was not a party to any of them, but the difficulty in his way will then be that he must show in this ease now afresh that the gift to Veera Reddi by the 3rd defendant is not a valid gift and that the mortgage by Veera Reddi to defendants 1 and 2 is not valid and therefore, the property is 3rd defendant's. It has not been pressed before me, that there is anything invalid, as regards the mortgage ; the very same reason that was given for upholding it, in the first claim petition, is applicable. The defendants 1 and 2 are bona fide purchasers for value ana under the last clause of Section 53 of the Transfer of Property Act, they are not affected by any defect in Veera Reddi's title, even assuming that there is any such defect. Both the lower Courts have found it and I think they are right in their finding; that finding is scarcely attacked before me. It is, however, contended that so far as the equity of redemption is concerned, it is still in the 3rd defendant, on the footing that the gift to Veera Reddi is not a good gift. Of course, if the gift to Veera Reddi would be shown to be a bad gift, it will not be binding as against this decree-holder. The 3rd defendant was not a party to the mortgage suit; and though the mortgage itself might be binding on him his equity of redemption could not be treated, as having been properly sold, so as to bind him. But the difficulty in the way of the plaintiff is that he has made no attempt in this case, to show that the gift to Veera Reddi is a bad one. He says it was so found in the yrovious litigation, as between Veera Reddi and the 3rd defendant and the then decree-holder ; but as ho himself argues, he is not bound by the findings in that suit, either by way of res judicata ox Us pendens ; nor is the finding in that suit binding upon defendants 1 and 2, the mortgagees and they were no parties either. The doctrine of Us pendens cannot be extended to give any advantage to the plaintiff in this case. Just as the plaintiff is not bound by the previous proceedings, ho cannot take advantage of them. There must be mutuality in this matter. The learned Vakil for the plaintiff relies upon the ease reported in Gnanambal v. Purvathi (1892) 15 Mad. 477 for saying that he is not estopped, from showing afresh, that the property is still the 3rd defendant's. That ruling no doubt supports him act I am prepared to follow it; but as already pointed out, he is met by the difficulty, that he has not attempted in this case to show that there is anything wrong in Veera Reddi's gift and the fact that Veera Reddi's gift was not supported by the Court, in a suit by another creditor, cannot be taken advantage of in this suit.

3. The second appeal, therefore, fails and is dismissed with costs.


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