MADURAMMAL v. K. GUNASEKARAN

This Second appeal is filed against the Judgement and decree of the II Additional District Judge, Puducherry in A.S.No.76 of 2018 confirming the order in E.A.No.49 of 2010 in E.P.No.51 of 2009 on the file of the Additional Subordinate Judge, Puducherry.

2. Before dealing with E.A.No.49 of 2010, the background which leads to filing of this petition has to be narrated for better understanding of the dispute involved in this case. On 10.06.1985, one Sundaramurthy purchased the properties measuring 27 kuzhies and 4 Veesams in S.No.46/9-, an extent of 1 kuli 14 Veesam in S.No. 48/7 and 71 kuzhies and 7 veesams in S.No.68/2 in Poraiyur Village in Villiyanur Sub District in Pudhuvai District. Among these properties, we are concerned with 71 kuzhies and 7 veesmas in S.No.68/2. Sundaramurthy died intestate on 24.03.1988, leaving behind 2/30 the appellants and respondents 3 and 4 as legal heirs. On 25.04.1994, the respondents 3 and 4, had mortgaged 40 kuzhies out of 71 kuzhies and 7 veesams in S.No.68/2 in favour of the 2nd respondent. The said Mortgage was a registered one and the Mortgage amount was Rs.20,000/-. The date of Mortgage is 25.04.1994. The period of Mortgage was three years. It appears that the respondents 3 and 4 had not repaid the loan amount to redeem the mortgage within the fixed period. Therefore, the 2nd respondent filed a suit in O.S.No.272 of 2001 on the basis of Mortgage. The suit was decreed on 28.11.2001 and the preliminary decree was passed. Then the 2nd respondent filed I.A.No.401 of 2002 in O.S.No.272 of 2001 for passing final decree. This petition was allowed and final decree was passed on 07.10.2002. Then he filed E.P.No.158 of 2002 in O.S.No.272 of 2001 for selling the mortgaged property. The appellants 4 to 6 filed E.A.No.143 of 2005 under Order XXI Rule 58 r/w. Section 151 of C.P.C., to raise order of attachment. Subsequently, they have not pressed the petition and it was dismissed as not pressed on 03.03.2005. Again, they filed E.A.No.178 of 2005 under Order XXI Rule 58 of C.P.C., and that was also dismissed as not pressed on 18.04.2005. In E.P.No.158 of 2002 the sale was conducted and in the sale 3/30 the 1st respondent was the successful bidder and the sale was confirmed in his favour and accordingly the sale certificate was issued. Thereafter, all the appellants filed E.A.No.343 of 2008 under Order XXI Rule 90 r/w.151 of C.P.C., to set aside the auction sale conducted on 10.04.2008 and E.A.No.344 of 2008 to restrain the respondents to act on the auction sale took place on 10.04.2008. Then the 1st respondent filed E.P.No.51 of 2009 for taking delivery of the property purchased in the Court auction sale.

3. E.A.Nos.143 of 2005, 178 of 2005, 343 of 2008 and 344 of 2008 have all been filed primarily on the ground that the appellants are entitled to 1/8th share each in the properties left by Sundaramurthy along with respondents 3 and 4. However, the respondents 3 and 4 have mortgaged 40 kuzhies out of 71 kuzhies and 7 veesems, which is in excess of their share. Therefore, the suit filed in respect of 40 kuzhies on the basis of the mortgage, mortgage decree, Court auction sale are not valid. Therefore, the Court auction sale will not bind their right in the property. While E.A.Nos.143 of 2005, 178 of 2005 were dismissed as not pressed, E.A.Nos.343 of 2008 and

344 of 2008 have been dismissed for non prosecution. It appears that during 4/30 the pendency of E.A.Nos.143 of 2005 and 178 of 2005, the appellants 3 to 6 have filed O.S.No.71 of 2011 seeking the relief of partition in the total extent of 71 kuzhies and 7 veesams, and restraining the 1st respondent from taking possession of B Schedule property, that is, 40 kuzhies covered under Mortgage decree and for other reliefs.

4. The 1st respondent filed I.A.No.72 of 2014 in O.S.No.71 of 2011 under Order VII Rule 11 (a) and (d) r/w. 151 of C.P.C., for rejecting the plaint in O.S.No.71 of 2011. Before filing this, the appellants filed E.A.No.49 of 2010 under Order XXI Rule 97 r/w. 151 of C.P.C., seeking the following relief's:

i. declaring the right and ownership over A Schedule property.

ii. allot 1/5th share each in favour of the appellants 4 to 6 and 4th respondent and for division of remaining 1/5 share among the legal heirs of the deceased Sundaramurthy, and thus the petitioners 3 to 6 and 4th respondent would get 9/40 shares or 14 kuzhies 9 veesams each and the appellants 1 to 3 and 3rd respondent would get 1/40 share each or 1 kuzhi 5/30 and 9 veesams each or 1/8 share each.

iii. Declaring that the Court sale and sale certificate dated 10.06.2008 as null and void and for other relief's.

5. The Interlocutory Application was contested by the respondents 1 and 2. On considering the rival submissions, the learned II Additional District Judge, Pondicherry, allowed I.A.No.72 of 2014 in O.S.No.71 of 2011 on the ground that the pendency of EA.No.49 of 2010 in E.P.No.51 of 2009 in E.P.No.158 of 2002 in O.S.No.272 of 2001 was suppressed in the plaint in O.S.No.71 of 2011 and further found that apart from title, any right of the contesting parties in A Schedule property, which includes B Schedule property, shall be decided in E.A.No.49 of 2010 and it is not necessary to file a separate suit. In this view of the matter, the petition to reject the plaint in

I.A.No.72 of 2014 was allowed and the plaint in O.S.No.71 of 2011 was rejected.

6. E.A.No.49 of 2010, as narrated above, was filed in E.P.No.51 of 2009, which was filed for taking delivery of the property purchased in the 6/30 Court Auction sale by the 1st respondent. E.A.No.49 of 2010 was filed for the reason that the appellants have 1/8th share in the A Schedule property. Mortgaging 40 kuzhies, in excess of the share of respondents 3 and 4 and subsequent filing of the suit in O.S.No.272 of 2001, the Court auction sale in favour of the 1st respondent in E.P.No.158 of 2002, the filing of E.P.No.51 of 2009 for taking delivery of property are all illegal and will not bind the shares of the appellants. If at all the mortgage has any validity, it will bind only the shares of the respondents 3 and 4 and therefore E.A.No.49 of 2010, a comprehensive petition, is filed for the reliefs aforesaid.

7. This was strongly contested by the auction purchaser by filing counter and additional counter affidavit claiming that he is a bonafide Court auction purchaser. The appellants have filed these petitions only to protract the proceedings and to see that the 1st respondent would not get the property purchased through Court Auction Sale. It is the submission of the respondents 1 and 2 that the appellants, who lived with the respondents 3 and

4 under a same roof, cannot challenge the mortgage, mortgage decree, Court Auction Sale, etc., Hence, the present petition filed under Order XXI rule 97 7/30 is not maintainable. The appellants claim is barred by limitation on the ground of acquiescence and laches.

8. On considering the rival submissions, the learned Additional Sub Judge, Pondicherry, dismissed the petition. In appeal, the first appellant Court also found that no reasons to differ from the view taken by the Executing Court and dismissed the appeal in A.S.No.76 of 2018. Challenging the said Judgment, the present second appeal is preferred.

9. At the time of Admission, the following substantial questions of law were framed:

1. Whether the Courts below were right in dismissing the application in E.A.No.49 of 2010 on the ground that the execution applications in E.A.Nos.343 and 344 of 2008, which were filed under Order XXI Rule 90 of the Code of Civil Procedure, seeking to set aside the sale in execution of the decree in O.S.No.272 of 2001 were dismissed for default? 8/30

2. Whether the dismissal of E.A.Nos.343 and 344 of 2008 would bar an application under Order XXI rule 97 r/w. Rule 98, 99 and 100, more so, when the cause of action for the obstructor arises only on delivery being ordered in execution proceedings?

10. Then on 07.01.2022, after hearing the counsel appearing on either side, the following substantial questions of law were framed: (1) Whether even if the purchase of the undivided share of 40 kuzhies made by the 1st respondent out of the 71 kuzhies & 7 Veesams in the petition A Schedule Hindu Joint Family Property in the court auction sale, is legal, valid and enforceable, can the E.P straight away filed by him for delivery of such unidentifiable undivided share, instead of, a Suit against the other co-sharers viz. the appellants for partition, obtain allotment of a specific portion towards such share, file E.P and take possession of the same is executable and maintainable? (2) Whether the doctrine of Caveat Emptor would apply to court auction sale and consequently, can the court auction sale of the undivided share of 40 kuzhies made to the 1st 9/30 respondent in the Petition A schedule property would give warranty of title over the said undivided share, instead of, only over his deemed sellers viz. the respondents 3 and 4 / mortgagers' entitlement of 2/8th undivided share of 17 kuzhies and 14 veesams therein? ( 3 ) Whether the respondents 3 and 4 as co-sharers of the petition A Schedule Hindu Joint Family property can legally and validly mortgage even their 2/8the undivided share of 17 kuzhies and 14 veesams therein and even if they have legal right to do so, the mortgage of an undivided share of 40 kuzhies made by them over and above their entitlement and the mortgage decree, the court auction sale and the sale certificate passed/conducted/issued based on the same for such excess undivided share, are legal, valid and enforceable? (4) Whether even if the mortgage, the mortgage decree, the court auction sale and the sale certificate are legal, valid and enforceable either in respect of the 2/8th undivided share of 17 kuzhies and 14 veesams actually owned by the respondents 3 and 4-mortgagors or even the undivided share of

40 kuzhies illegally mortgaged by them over and above their entitlement, the appellants as other co-sharers and entitled to the remaining 53 kuzhies and 9 veesams or atleast 31 kuzhies and 7 veesams in the petition A schedule Hindu 10/30 Joint Family Property, are not entitled for partition and separate possession of the same and consequently, were the Courts below right in incorrectly proceeding that they have prayed for partition of only the mortgaged undivided share of

40 kuzhies viz., the petition B schedule property and dismissing the E.A and A.S?

11. The main submission of the learned counsel for the appellants is that admittedly the suit properties are self acquired properties of Sundaramurthy and that the 3rd and 4th respondents who are the wife and son of late Sundaramurthy are entitled to succeed to the properties of Sundaramurthy along with the appellants. As already indicated, Sundaramurthy purchased the properties in S.Nos.46/9, 48/7 and 68/2 of Poraiyur Village, out of which we are concerned with the properties covered under S.No.68/2 measuring 71 kuzhies and 7 veesams. According to the appellants, out of the total extent close to 72 veesams, the respondents 3 and

4 are entitled only to 18 kuzhies. But they mortgaged 40 kuzhies, which is in excess of their share. Therefore, the mortgage in excess of 18 kuzhies to the 2nd respondent, subsequent mortgage suit, mortgage decree Court Auction Sale of 40 kuzhies would not bind the right of the appellants in claiming the share in remaining extent of 54 kuzhies. 11/30

12. The next submission put forth by the appellants is that these properties are not divided among the legal heirs of Sundaramurthy and therefore, even if any mortgage decree is obtained in respect of undivided shares, E.P. for sale or delivery cannot be maintainable. The remedy open to the auction purchaser is only to file a suit for partition. Without partitioning the petition Schedule properties, the sale of the property or petition for delivery are not legal. Mortgage amount was Rs.20,000/- and mortgage decree amount was only Rs.50,443. But, the original value of the property is more than Rs.10 lakhs. However, it was sold only at Rs.1,01,500/-. For any sale of immovable properties, it is enough to sell the extent of the property that meets the decree amount. Excessive execution cannot be permitted. The 1st respondent is the friend of the 2nd respondent and he came from Chennai to participate the Court Auction sale. It shows that the Court Auction sale is a collusive sale. The principle of Caveat emptor applies to Court Auction sale also. The 1st respondent has not properly verified as to whether the respondents 3 and 4 are entitled to mortgage 40 kuzhies and whether he can buy the property. Even otherwise in the present petition filed in E.A.No.49 12/30 of 2010, the petitioners who are the appellants claiming their right of partition of total extent of 71 kuzhies and 7 veesams. When the suit filed by them for partition in O.S.No.71 of 2011 was dismissed with a direction that the right and entitlement can be decided in E.A.No.49 of 2010, the Courts below should have ordered partition of the property excluding the share of the respondents 3 and 4. However, both the Courts below have wrongly dismissed the petition in its entirety. Therefore, that has to necessarily be set aside.

13. In support of his submissions, the learned counsel for the appellants relied on the Judgements reported in (2008) 7 SCC 46 in Hardeo Rai Vrs Sakuntala Dvi and others for the proposition that the purchaser of undivided properties of a joint family will have to file only a suit for partition. The relevant paragraph is extracted hereunder:

26. Thus, even a coparcenary interest can be transferred subject to the condition that the purchaser without the consent of his other coparceners cannot get possession. He acquires a right to sue for partition.

14. Similarly, in (2009) 7 SCC 444 in Ramdas Vrs Sitabai and 13/30 others this Court has observed as follows:

17. Without there being any physical formal partition of an undivided landed property, a co-sharer cannot put a vendee in possession although such a co-sharer may have a right to transfer his undivided share. Reliance in this regard may be placed to a decision of this Court in M.V.S. Manikayala Rao Vs. M. Narasimhaswami, wherein this Court stated as follows ((AIR p.473,para 5): "5. ...Now, it is well settled that the purchaser of a co- parcener's undivided interest in the joint family property is not entitled to possession of what he had purchased. His only right is to sue for partition of the property and ask for allotment to him of that which, on partition, might be found to fall to the share of the co- parcener whose share he had purchased."

18. It may be mentioned herein that the aforesaid findings and the conclusions were recorded by the Supreme Court by placing reliance upon an earlier judgment of this Court in Sidheshwar Mukherjee Vs. Bhubneshwar Prasad Narain Singh & Ors. [AIR 1953 SC 487], wherein this Court held as under:- "11....All that (vendee) purchased at the execution sale, was the undivided interest of co-parcener in the joint property. He did not acquire title to any defined share in the property 14/30 and was not entitled to joint possession from the date of his purchase. He could work-out his rights only by a suit for partition and his right to possession would date from the period when a specific allotment was made in his favour (Emphasis added)

19. In view of the aforesaid position there could be no dispute with regard to the fact that an undivided share of co- sharer may be a subject matter of sale, but possession cannot be handed over to the vendee unless the property is partitioned by metes and bounds amicably and through mutual settlement or by a decree of the Court.

15. The learned counsel also relied on the Judgment reported in (1971) 1 SCC 757 in Ahmedabad Municipal Corporation of the city of Ahmedabad Vrs Haji Abdulgafur haji Hussenbhai for the proposition that there is no warranty of title in a Court Auction sale. The buyer has to be aware of the property which is to be bought in Court Auction Sale. The relevant paragraph is extracted hereunder:

3. To begin with it was contended that there is no warranty of title in an auction sale. This general contention seems to us to be well-founded because it is axiomatic that the 15/30 purchaser at auction sale takes the property subject to all the defects of title and the doctrine caveat emptor (let the purchaser beware) applies to such purchaser. The case of the judgment debtor having no saleable interest at all in the property sold such as is contemplated by Order XXI 21, Rule 91, C. P. C. is, however, different and is not covered by this doctrine.

16. The learned counsel also relied on the Judgment reported in 2007 (2) CTC 632 in Lathislal Vrs Lawarance Yesudhasan for the proposition that only the property that is sufficient enough to satisfy the decree amount has to be sold in Court auction sale and not in excess of the requirement. The relevant paragraph is extracted hereunder:

21. The above facts coupled with the Judgement referred to above will show that the decree holder has brought the entire properties for sale and knocked away the same for a paltry sum. The Court below has erred in bringing the entire properties for sale, when a portion of the property a few of the properties are sufficient enough to satisfy the decree. So, the argument of the learned counsel for the petitioner on this point sounds reasonable.

17. The next decision relied on by the learned counsel with regard to 16/30 the binding nature of Judgment is reported in (2001) 10 SCC 11 in Shiv Kumar Tiwari (Dead) by Lrs. Vrs Jagat Narain Rai and others wherein the Hon'ble Supreme Court has held as follows:

The least said about the manner of consideration and disposal given in the judgment of the Civil Court in Suit No.108 of 1973 is better. Such a Judgment could not be pressed into service to the detriment of the rights of the first respondent and it requires no serious exercise to place on record the position of law that the judgment/decree/order of Courts or any other authority binds only the parties to it, or their privies when it concern the rights of parties and such proceedings purport to be adjudicate also rights of contesting parties by means of an adversarial process.

18. He relied on the Judgment reported in (2013) 15 SCC 161 in Sebastiolo Luis Fernandes (Dead) through Lrs and Others Vrs. K.V.P.Shastri (Dead) Through Lrs and others, for the proposition that the general rule is that the High Court will not interfere with the concurrent findings of the Courts below. But there are certain well recognised exceptions for interference. This is one such case where the interference is required for the reasons aforesaid. The relevant paragraph is extracted hereunder for better 17/30 appreciation:

(iii) The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to decision based on no evidence, it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.

19. Per contra, the learned counsel for the 1st respondent submitted that the property was mortgaged by the respondents 3 and 4 to meet their family expenses and for settling the loan amount. The extent of 40 kuzhies is mortgaged within the specified Court boundaries. Therefore, the claim of the learned counsel for the appellants that this 40 kuzhies is identifiable is not 18/30 correct. The mortgage suit was filed six years after expiry of mortgage period. The appellants and respondents 3 and 4 were all residing in the same house. The appellants have not challenged the mortgage and mortgage suit. Mortgage suit was decreed on 28.11.2001, final decree was passed on 07.10.2002, the sale certificate was issued on 10.06.2008. The appellants have not taken any steps to challenge the mortgage decree. They filed E.A.Nos.143 of 2005 and 178 of 2005 under Order XXI Rule 58 of C.P.C., and not pressed these applications. Then they filed E.A.Nos.343 of 2008 for setting aside the Auction held on 10.04.2008 and E.A.No.344 of 2008, restraining the respondents for getting the property through the auction sale and both the applications have been dismissed for default. The dismissal of these applications will act as constructive res judicata against the appellants. The suit filed by them in O.S.No.71 of 2011 was rejected on the basis of the order passed in I.A.No.72 of 2014 filed by the 1st respondent and as against the same, the appellants have not preferred any Civil Revision Petition. It is reiterated by the learned counsel for the 1st respondent that he is a bonafide purchaser for value in Court Auction Sale. The appellants and the respondents 3 and 4 are colluding with each other and filed many 19/30 applications and putting up blocks to the 1st respondent from taking possession of the suit property and enjoying it. Both the Courts below, on the basis of the conduct of the appellants and respondents 3 and 4, had dismissed the petitions. Therefore, the learned counsel prayed for confirming the Judgment of the Courts below and dismissal of this Second Appeal.

20. The learned counsel relied on the Judgment reported in 2013 4 CTC 554 for the proposition that the findings rendered in interlocutory applications would amount to res judicata in subsequent proceedings. The relevant paragraph is extracted hereunder: ..It is settled position of law that the decision rendered in Interlocutory Applications would amount to res judicata. Therefore, we are of the view that the decision of the learned single Judge, insofar as the encumbrance is concerned, cannot be sustained. Admittedly, the earlier order covers the question regarding alienation also. It is not the case of the Appellants that they are going to alienate the property. In other words the order of the learned Single Judge granted in O.A.Nos.84 &

85 of 2004 binds both the parties. Therefore, there is no difficulty for us to hold that the Appellants cannot alienate the suit properties, namely, Items 1 & 2 of 'A' Schedule 20/30 properties.

21. In reply, it is the submission of the learned counsel for the appellants that E.A.Nos.143 of 2005 and 178 of 2005, 343 of 2008 and 344 of 2008 had not been disposed after hearing the parties and on merits. They were dismissed either as not pressed or for non prosecution. Therefore, the dismissal of these applications would not be a bar as res judicata in deciding E.A.No.49 of 2010.

22. I have considered the rival submissions and perused the materials available on record.

23. The real scope of the Second appeal is very very limited. The questions to be decided are whether the mortgage of 40 kuzhies in S.Nos.68/2 of Poraiyur Village in Villianur Sub District in Puduvai District by the respondents 3 and 4 is valid or not? If it is valid, the appellants have no case at all. If it is not valid whether the appellants are entitled for the relief of declaration and partition and other reliefs?

24. As narrated above, there is no dispute with regard to the fact that 21/30 the suit properties were purchased by Sundaramurthy, the husband of the 3rd respondent, father of the appellants 1 to 6 and 4th respondent. Thus in Law, being the Class I heirs of Sundaramurthy, all these persons are entitled to equal shares in his property. The Sale Deed dated 10.06.1985 covers three properties. But we are concerned with only the property in S.No.68/2.

25. The reading of the Mortgage deed, dated 25.04.1994, Ex.A8 shows that the respondents 3 and 4, the wife and son of Sundaramurthy have acknowledged that the suit property belonged to Sundaramurthy and after his death, they are entitled to the property. When it comes to the reason for mortgaging the property, it is specifically stated that they have no money to meet the family expenses and they have to repay certain loan amounts. Therefore, they mortgaged the property covered under the documents for Rs.20,000/-. The mortgage period is fixed for three years. However, they were not able to redeem the mortgage and therefore the suit was filed in O.S.No.272 of 2001. The mortgaged property was brought before the Court Auction Sale and was purchased by the 1st respondent.

26. In this connection, it is relevant to read the evidence of P.W.1. 22/30 Certain portion of P.W.1 evidence was extracted in the Judgement of the Executing Court. It shows that at the time of execution of Ex.A8 mortgage, P.W.1 was 15 years old and his brothers and sisters were 12, 10 and 18 years. Therefore, it is quite apparent to understand that the respondents 3 and 4, had mortgaged 40 kuzhies only for the purpose of meeting their family expenses and settling certain loans. When Sundaramurthy left this world leaving his wife and seven children, Ex.A8 mortgage deed was executed for the reason to meet the family expenses and for settling loan amount. They are genuine reasons and therefore the mortgage will certainly bind the appellants herein.

27. Through Ex.A1 sale deed, Sundaramurthy purchased three items of the suit properties. In this regard, it is pertinent to refer the evidence of P.W.1.. It is seen from the evidence of P.W.1 that the item Nos.1 and 2 of the properties purchased under Ex.A1 were sold to thirds parties. It is his further admission that out of 71 kuzhies and 7 veesams, his mother and brother had mortgaged only 40 kuzhies and remaining extent is available with them. Thus the dispute is only with regard to 31 kuzhies and 7 veesams. The four boundaries of A Schedule and B Schedule properties are identical. 23/30 Therefore, there is a genuine issue as to how we should identify the 40 kuzhies mortgaged by the respondents 3 and 4 and purchased by the 1st respondent in the Court Auction sale.

28. The appellants claimed that they are not aware of the mortgage, mortgage suit and executing proceedings till the filing of the application for raising attachment in E.P.No.158 of 2002. It is looks like a tall claim and difficult to believe. The orders passed in E.A.No.143 of 2005, 178 of 2005,

343 of 2008 and 344 of 2008 do not operate as constructive res judicata against the appellants for the reasons that all these applications have not been decided on merits. But it shows the conduct of the appellants in poor light. The petition under Order XXI Rule 58 of C.P.C., cannot be maintainable in a mortgage execution petition. However, they have filed two applications under Order XXI Rule 58 and not pressed it. Then they filed E.A.Nos.343 of 2008 and 344 of 2008, challenging the Court Auction Sale and did not prosecute the applications and allowed them to be dismissed for default. The repeated filing of applications and failure to prosecute the same shows the attitude of the appellants towards the 1st respondent that their intention that 24/30 the 1st respondent should not get the fruits of auction purchase.

29. One more submission advanced by the learned counsel for the appellants is that the mortgaged property was sold for lesser price and the actual value of the suit property was more than 10 lakhs at the time of selling the schedule property. However, it is clearly admitted by P.W.1 that he has not filed any documents to show that the value of the property is more than Rs.10 lakhs. Therefore, the submission of the learned counsel for the appellants that the mortgaged property was sold for lesser price cannot be accepted. It is not open to the respondents 3 and 4 or the appellants to challenge the Court auction sale.

30. Over all analysis of the oral and documentary evidence shows that the respondents 3 and 4 had mortgaged 40 kuzhies of undivided property from the total extent of 71 kuzhies and 7 veesams in favour of the 2nd respondent to meet their family expenses and to discharge certain loan amounts. Most of the appellants were minors at the time when the property was mortgaged for genuine reasons of meeting the family expenses and 25/30 settling the loans. Therefore, the mortgage will bind the appellants also. The appellants had also not chosen to challenge either the mortgage or mortgage suit at the earliest point of time. Now, it cannot be contended that they are ignorant about the mortgage suit, preliminary and final decree passed in the mortgage suit. This Court finds that Ex.A8 mortgage binds on the appellants and that they cannot claim the relief of declaration in respect of the entire extent of Schedule property. But they can claim partition of the remaining 31 kuzhies and 7 veesams in the Schedule property. They are not entitled for any other reliefs.

31. In this view of the matter, the dismissal of E.A.No.49 of 2010 is set aside. The Judgements of the Court below, especially the first appellate Court in A.S.No.76 of 2018 is confirming the order passed in E.A.No.49 of 2010 is also set aside and modified to the extent that the appellants are entitled to partition of the remaining extent of 31 kuzhies and 7 veesams out of the total extent of 71 kuzhies 7 veesams. This matter is remitted back to the trial Court viz., Additional Sub Judge, Puducherry for appointment of Advocate Commissioner to divide the properties into two 26/30 equal shares as 40 kuzhies and 31 kuzhies and 7 vesams and allot 40 kuzhies to the 1st respondent and allot the remaining portion to the appellants

1 to 6.

32. Thus, this Court finds that the dismissal of E.A.No.49 of 2010 in its entirely is not correct for the reasons stated above and the substantial question of law No.1 is answered accordingly. It is answered for the 2nd substantial question of law that the dismissal of E.A.Nos.343 and 344 of 2008 would not bar the filing of the applications under Order XXI rule 97 r/w. 98,

99 and 100 of C.P.C. When an undivided property is purchased, the purchaser can only file a suit for partition and execution petition cannot be filed. Thus the additional substantial question of law no.1 is answered. The doctrine of caveat emptor would apply to the Court auction sale. However this Court finds that the mortgage deed executed by the respondents 3 and 4 will bind the appellants also. Therefore, the Court Auction sale of undivided property of 40 kuzhies to the 1st respondent will bind the appellants. Thus the 2nd and 3rd additional questions of law are answered. The appellants are entitled to 31 kuzhies 7 veesams in A Schedule properties is the answer 27/30 for 4th substantial question of law.

33. In fine, The Second Appeal is partly allowed with costs of the 1st respondent throughout. The Judgements of the first appellate Court in A.S.No.76 of 2018, confirming the order passed in E.A.No.49 of 2010 is set aside and modified to the extent that the appellants are entitled to partition of the remaining extent of 31 kuzhies and 7 vesams out of the total extent of

71 kuzhies 7 veesams. This matter is remitted back to the trial Court for appointment of an Advocate Commissioner to divide the properties into two parts as 40 kuzhies and 31 kuzhies, 7 veesams. The 1st respondent is entitled to 40 kuzhies and the appellants are entitled to remaining extent of 31 kuzhies and 7 veesams. The Trial Court is directed to divide and allot the shares as indicated above. Consequently, connected miscellaneous petition is closed. 31.01.2022 Index:Yes/No Internet:Yes/No Speaking Order: Yes/No 28/30

1. The I Additional District Judge, Puducherry.

2. The Additional Subordinate Judge, Puducherry.

3. The Section Officer, VR Section, High Court of Madras. 29/30 G.CHANDRASEKHARAN.J, (Pre-Delivery Judgment in) and CMP No.23975 of 2019 31.01.2022 30/30