PUNNOOSE Vs. KORATHU

JUDGEMENT

(1.) These three appeals arise out of the decision of the Temporary Second Judge, Mavelikara, dated 17th Adi 1118 in O.S. 194 of 1116, on the file of the District Court, Mavelikara. A.S. Nos. 300 and 302 of 1119, are filed by Defendants 3 and 4 respectively, and A.S. No. 148 of 1123, is filed by the plaintiff.

(2.) The facts are these: The plaintiff claimed partition and delivery of a 4/13th share in the estate of his deceased father Varki Koruthu who died on 1st Karkadakom 1105. Varkey Koruthu had an elder brother Varki Mathai who died in Chingom 1106 and whose widow was examined as PW 1 in the case. He has a younger brother who is Defendant 6 and who has been examined as DW 3. The 3 brothers had divided their partimony and has no longer any community of interest. Varki Koruthu had married thrice. The first wife died issueless. By the second wife he had an only son Koruthu Varki, who died in Thulam 1106 leaving him surviving a widow and 2 minor children who are defendants 7, 8 and 9 respectively. After the date of the second wife he married a third through whom, he begot 3 issues who are Defendant 10, plaintiff and Defendant 11. Varki Koruthu died leaving him surviving only his four children. His third wife would appear to have predeceased him. The three children of Varki Koruthu by his third wife, who were all minors, were ever since the death of their father, under the care of PW 1. They continued to be under her care even at the time of the suit. Defendant 6 appears to have been a co-obliger with the deceased Koruthu in certain transaction, one of which led to a decree in O.S. No. 353 of 1105, Munsiffs Court, Thiruvella. After Koruthu died and after his legal representatives were brought on record, Defendant 6 appears to have been arrested in execution of the said decree and an amount of Rs. 30/- appears to have been paid by him to obtain his temporary release from arrest. This happened in Kumbhom 1106: see Ext. 13. Two months before this i.e., on 5th Dhanu 1106 Defendant 7 on her own behalf and as guardian of her minor children Defendants 8 and 9 also as guardian of Defendants 10 and 11 and the plaintiff, who were all minors then, executed a deed of hypothecation for Rs. 10,305 in favour of one Varghese stating that from out of the consideration an amount of Rs. 1700 is adjusted towards the amount due to the hypothecatee, that an amount of Rs. 903 is made good by the hypothecatee paying the decree-holder in the said O.S. 353 of 1105 and reserving Rs. 7702 with the hypothecatee for payment of debts of the deceased Koruthu specified therein. Ext. 6 is the deed of hypothecation. On 30th Medom 1106 a sale deed of the entire estate of deceased Koruthu except 35 cents of land, was executed by Defendant 6 as the guardian of plaintiff and Defendants 10 and 11 and by Defendant 7 on her own behalf and as guardian of her minor children Defendants 8 and 9 in favour of Defendant 1 for a consideration of Rs. 6501 made up of Rs. 1201 reserved for payment towards a liability under a chitty to be paid to the Travancore National and Quilon Bank Ltd., Rs.862 1/2 reserved for payment of another chitty liability in favour of the Modern Bank for both of which the deceased Koruthu would appear to have executed deeds of hypothecation, and Rs. 4437-0-0 paid in cash (so the document states) for discharging other unspecified debts of deceased Koruthu. On even date, the same parties executed a deed of hypothecation Ext. 19 in favour of the maternal uncle of the plaintiff and Defendants 10 and 11 for Rs. 982 reserving Rs. 972 for payment of two specified debts incurred by deceased Koruthu under promissory notes and receiving Rs. 10 for the expenses of the execution and registration of the document. On 27th Mithunam 1106 Defendant 1 executed Ext. 1 in favour of Defendant 2 stating that the aforesaid sale deed taken in his name was taken by and on behalf of Defendant 2, that Defendant 2 got possession of the properties pursuant thereto, that Defendant 1 had no title to or interest in the properties the purchase having been benami for Defendant 2. Ext. II refers to the earlier mortgage Ext. 6 and states that on account of non acceptance by the mortgage the document did not come into operation. On 15th Karkadakom 1106 Defendant 6 is seen to have procured an endorsement marked Ext. 6(a) and Ext. 6 by the mortgagee there under to the effect that the document was brought into existence without his knowledge and consent and that he had not accepted the same. On 24th Karkadakom 1106 Defendant 2 sold item 4 purchased by him under Ext. II in favour of the Defendant 4 by executing a deed of sale marked Ext. 18 or a consideration of Rs. 1441 made up of Rs. 191 adjusted towards an amount stated to be due to the vendee from deceased Koruthu and receiving Rs. 1250 in cash. One Sankara Iyer, obtained a decree against Defendant 2 in O.S. 11 of 1108 on the file of the District Court, Alleppey and in execution thereof attached and sold the remaining items comprised in the sale deed Ext. 11. Sankara Iyer himself purchased the properties in Kanni 1110, took delivery of them through Court and entrusted them on lease with Defendant 3 who is the son of Defendant 2 and later, on 4th Idavom 1111 sold the properties to Defendant 3 for Rs. 1400. Ext. 23 is the sale deed. Defendant 3 gave a usufructuary mortgage of the properties thus obtained by him to Defendant 5 for Rs. 3000 in Makaram 1112. Ext. 24 is the mortgage deed.

(3.) The suit was filed in the District Court, Kottayam on 5th Meenom 1115 within three years of the plaintiff attaining majority with an application for permission to sue in forma pauperis. It was Petition No. 22 of 1115. The case was afterwards transferred to the file of the District Court, Mavelikara, where the application for permission to use in forma pauperis was numbered as 13 of 1116. That application was duly enquired into and allowed by that Court and the suit was numbered as O.S. 194 of 1116 on its file.