P. KAMALAMM Vs. CHANDRIKA AND OTHERS

JUDGEMENT

(1.) Respondent 1 and 2 are the legal representatives of the plaintiff who filed suit O.S. 36 of 1979 before the Munsiff's Court, Adoor for partition and separate possession of his 1/7 share and other reliefs. The suit was decreed and a preliminary decree for partition was passed. The appeal filed by the first defendant was dismissed. Hence the second appeal by the first defendant.

(2.) The relevant facts can be summarised as follows : As a result of Ext. B.1 assignment deed dated 7th May, 1924 and Ext. A.10 decree, dated 15th Jan., 1959 in O.S. 61 of 1958 of the Sub Court, Quilon, seven persons, namely, Kesava Pillai, second defendant and his brothers and sisters had equal right over the suit property. After the death of Kesava Pillai, his widow and children sold his 1/7 share to the plaintiff under Ext. A.1 sale deed, dated 2nd Nov., 1976. It was on this basis that the plaintiff sued for partition and separation of his share and other reliefs. It appears, that even during the life-time of Kesava Pillai his 1/7 share was sold in Court auction in execution of a decree in O.S. 61 of 1958 and purchased by the first defendant. Kesava Pillai filed an application to set aside the sale under Order 21 Rule 90 Civil Procedure Code and that was dismissed. The order was not challenged in appeal or revision. Since only an undivided share was purchased, first defendant did not seek to obtain delivery of the property purchased by her. it appears, no express order had been passed confirming his sale. On these averments first defendant contended that long before Ext. A.1 sale deed in favour of the plaintiff, Kesava Pillai's 1/7 share had been purchased in Court auction by the first defendant and, therefore, plaintiff has not derived any right.

(3.) The trial Court found that the Court auction sale had become infructuous by efflux of time on account of delivery not having been taken within one year of Court auction sale and upheld the plaintiff's title. The appellate Court held that the Court auction sale not having been confirmed by an express order, the sale had not become absolute and, therefore, Kesava Pillai had not been divested of his title during his lifetime and plaintiff had acquired 1/7 right.