KRISHNANKUTTY PANICKER Vs. GOVINDA PILLAI

JUDGEMENT

(1.) Defendants 20 and 21 in O.S. No. 440 of 1115 on the file of the District Munsiff, Thiruvella are the appellants. The suit was to enforce a deed of hypothecation, Ext. A dated 28.6.1089 executed by defendants 1 to 3 in favour of the 5th defendant who assigned his rights to the plaintiff. The 4th defendant is a member of the tarwad of defendants 1 to 3 and was impleaded as such. In the suit as originally filed there were only 5 defendants. The second defendant filed a written statement setting up sole title in himself over the hypothecation for certain reasons mentioned by him therein. He explained the execution of the deed of hypothecation as having been resorted to not to evidence a transaction but for the purpose of enabling him successfully to prosecute certain proceedings relating to the title of items 1 to 4 of the properties hypothecated. These items 1 to 4 originally belonged to a divided branch of a tarwad of which one Krishna Neelakantan was the last surviving member. The 2nd defendant contended that he had been in some manner affiliated to that divided branch with the result that on Krishnan Neelakantans death, the 2nd defendant became the last surviving member and in that way became solely entitled to the properties. Krishnan Neelakantan executed a will bequeathing items 1 and 2 in favour of his wife and son. That will was produced for registration after the death of the testator in connection with which the second defendant appeared and opposed registration impeaching the will as a forgery. His contentions were overruled and the will was directed to be registered. On account of this order for registration, he filed a suit O.S. 302 of 1089 for a declaration that the will directed to be registered was a forgery. Subsequently he appears to have withdrawn the suit. The petition for withdrawal is Ext. 1 in the case dated 8.8.1089. The deed of hypothecation sought to be enforced in the suit appears to be executed during the pendency of the suit.

(2.) The second defendant also contended that the wife and child of Krishnan Neelakantan already mentioned, assigned the properties to the 19th defendant from whom defendants 20 and 21 got a transfer and they, in their turn, assigned the properties to the 6th defendant who was in that manner in possession and enjoyment of the properties. Now these transactions relate only to items 1 and 2 in the plaint, item 1 being a paramba and item 2 being a building on that paramba. In this appeal we are concerned only with items 1 and 2. Upon this written statement of the 2nd defendant, certain new defendants were impleaded at the instance of the plaintiff. They were defendants 6 to 16. The 6th defendant filed a written statement referring to the fact that he was the owner of the properties in question and in possession as owner having derived his title from defendants 20 and 21 with an indemnity that should the title conveyed be found to be defective in any manner, the transferors would be liable to indemnify the transferee, the 6th defendant.

(3.) The 6th defendant also prayed that defendants 20 and 21 as also the 19th defendant from whom defendants 20 and 21 derived title, and some other parties may be impleaded as parties to the suit. Upon this written statement, the court asked the plaintiff whether he was prepared to implead these new parties. The plaintiff stated that he did not propose to implead them at his expense, but that he had no objection to their being brought in at the expense of the 6th defendant. Accordingly additional defendants 17 to 24 were brought on record. Defendants 25 to 39 are the legal representatives of defendants 6 and 10.