THANKAMMA Vs. VIVEKANANDAN

JUDGEMENT

(1.) The sixth defendant in O.S.I 146 of 1973 before the Munsiffs Court, Thiruvananthapuram, who suffered a decree at the hands of the lower appellate court has come up in appeal before this court. The parties and facts are hereinafter referred to as they are available before the trial court. The plaint schedule property, which has an extent of 12 cents, belonged to Neelakantan Vaidyan, who obtained it under Ext. B1 dated 31.10.1950. He executed Ext. A2 mortgage deed dated 15.10.1957 in favour of one Sathi Devi. Subhadra, the wife of Neelakantan Vaidy an, took assignment of the mortgagee's rights as per Ext. A 12 dated 17.11.1958. It was contended on behalf of the sixth defendant that Neelakantan Vaidyan on 5.3.1960 had agreed to sell the property to the sixth defendant for a total consideration of Rs. 3,000/-. As part of the sale consideration Neelakantan Vaidyan received Rs. 1,800/- and put the sixth defendant in possession of the property and the prior deeds were also handed over to her. It is pointed out that the sixth defendant had rented out the building to the seventh defendant and eighth defendant. Sixth defendant is the sister of Neelakantan Vaidyan's wife, Subhadra. When Neelakantan Vaidyan was in hospital, he received a sum of Rs. 500/- from the sixth defendant as part of the sale consideration. Neelakantan Vaidyan died on 10.1.1962 before actually executing the sale deed in favour of the sixth defendant. Sixth defendant would assert that Subhadra, who succeeded to the property executed Ext. B6 sale deed dated 25.9.1965 and thus she became the absolute owner in possession of the property.

(2.) Neelakantan Vaidyan had two cousin brothers, Velayudhan Vaidyan and Ramakrishnan. Vivekanandan, the plaintiff is the son of Velayudhan Vaidyan. According to the plaintiff, Neelakantan Vaidyan had executed Ext. A1 Will dated 10.6.1957, whereby the plaint schedule property was bequeathed to Velayudhan Vaidyan and Ramakrishnan. Velayudhan Vaidyan had assigned his share over the suit property by Ext. A8 dated 23.3.1964 in favour of Vivekanandan, the plaintiff. Defendants 1 to 5 are the legal heirs of Ramakrishnan, who had 2/5 share over the property. Claiming 3/5 shares, the suit was laid.

(3.) The trial court on the basis of the pleadings raised necessary issues for consideration. The evidence consists of the testimony of RWs. 1 to 3 and documents marked as Exts. A1 to A12 from the side of the plaintiff. Defendants had D.Ws.1 to 4 examined and Exts. B1 to B10 marked. Initially the trial court had dismissed the suit. The matter was carried in appeal by the plaintiff as A.S.50 of 1977 and the lower appellate court allowed the appeal and remanded the case for decision on issue Nos. 4,5 and 6, which according to the lower appellate court had not been decided by the trial court earlier. That order was challenged in C.M.A. 17 of 1980 and this court clarified certain aspects and confirmed the remand order.