ABUBACKER Vs. ABDULRAHIMAN BEARY

JUDGEMENT

(1.) THIS appeal is by defendants 3 and 4 in O. S. No. 65 of 1957 of the Subordinate Judge's Court, Kasargod.

(2.) THE facts giving rise to the appeal may be briefly stated: THE properties described in the plaint schedule belonged to Kadaprath ahmed Beary and his wife, Jainaba. THEy had three sons, Abdulkader (deceased)and defendants 1 and 2. On 1-3-1950 the second defendant executed a usufructuary mortgage, Ext. A-1, for Rs. 5,000/- in favour of the plaintiffs in respect of one-third of the properties and he took back the properties on lease. A second mortgage was executed by him in favour of the plaintiffs on 18-4-195 0. Abdulkader also executed two mortgages for one-third of the properties in favour of the plaintiff of which the first was on 8-3-195 0. He took the properties on lease from the plaintiffs. Abdulkader and the second defendant defaulted payment of rent and the plaintiffs sued for recovery of the same THEre were three suits against abdulkader for the rent of successive periods and two of those suits were pending on the date of this suit. THE two suits filed against the second defendant had been decreed by that time. Notwithstanding the suits and the decrees, no amount was realised from the second defendant or Abdulkader. THE first defendant took assignments of the shares of Abdulkader and the 2nd defendant undertaking to pay the amounts due to the plaintiffs but he did not pay the same. Kadaprath Ahmed had other wives and children by them and the first defendant has taken assignment of the shares of some of them undertaking to pay the debts due from them to defendants 3 and 4. As the first defendant was taking the whole yield without paying the debts due to the plaintiffs or defendants 3 and 4, the plaintiffs sued for recovery of two-third of the properties covered by the mortgages executed by Abdulkader and the second defendant and they also prayed that such share be allowed to be recovered after partitioning the properties. Defendants 1 and 2 filed a joint written statement stating that the plaintiffs were not entitled to two-third of the properties but only to 5/24, as each of the mortgagors was entitled only to 5/48 of the properties as held by the decree in O. S. No. 17 of 1944, a suit for partition by some of the heirs of Ahmed. By a supplementary written statement they raised an additional contention that all the heirs of Kadaprath Ahmed had not been made parties to the suit and that the same was therefore liable to be dismissed. THE third defendant remained exparte. THE fourth defendant filed a written statement stating that he was unaware of the mortgage and lease transactions relied on in the plaint. He further stated that some of the heirs of Ahmed had executed a simple mortgage in his favour on the basis of which he had obtained a decree in O. S. No. 545 of 1955 of the District Munsiff's Court, hosdrug, and that he was entitled to recover the amount under the decree from the properties charged thereunder. He also claimed to have obtained assignment of a mortgage deed executed by two of the heirs of Ahmed in respect of a property bearing number R. S. 33-5 of Chittari village. As regards the prayer for partition, his contentions were that he was not aware of the plaintiffs' right to claim partition and the extent of their share and that he had no objection to the partition of the properties subject to his rights THE defence contentions were over-ruled and the plaintiffs were given a decree as prayed for. Defendants 3 and 4 have jointly preferred this appeal from the decree while defendants 1 and 2 have preferred a memorandum of cross-objections)objecting to the decree granted to the plaintiffs.

(3.) THE other contention of the appellants relates to the mortgage right claimed by the fourth defendant in R. S. 33-5 of Chittari village. THE plaintiffs-respondents agree that this property may be excluded from the decree. THE suit will therefore stand dismissed in respect of R. S. No. 33-5 of Chittari Village.