ABRAHAM Vs. BOOTHALINGAM PILLAI

JUDGEMENT

(1.) Defendants 2 and 3 are the appellants in this Second Appeal. Appellants 2 to 8 in the lower appellate Court who are the legal representatives of the deceased appellant there (Plaintiff) are respondents 1 to 7 here. They have filed a memorandum of objections. The 1st defendant is the 8th respondent.

(2.) The 1st defendant who was the owner of the properties shown in the schedule attached to the plaint gave a possessory mortgage thereof to the plaintiff under Ext. A dated 27.4.1106. On even date he took the properties back on lease for a period of 3 years certain and executed Ext. B in favour of the plaintiff, fixing an yearly rent and providing for half-yearly payment. Ext. B creates a charge over the 1st defendants interests over the properties for the rent payable under the lease. On 18.8.1107, the first defendant assigned his ownership over the properties to the second defendant under Ext. J., without mentioning the fact that he was holding the properties as a lessee. The 2nd defendant, in his turn, assigned the rights obtained by him under Ext. J to the 3rd defendant under Ext. H dated 26.1.1115.

(3.) On 4.10.1107, the plaintiff brought a suit impleading defendants 1 to 3 and another party for arrears of rent for the years 1106 and 1107 as also for recovery of possession of the properties on the ground that the sale deed by the 1st defendant to the 2nd defendant was brought about in collusion between defendants 1 to 3 on a deliberate suppression of the fact that the 1st defendant was holding as lessee with a view to defeat the rights of the plaintiff. Relief in respect of the rent after the date of the sale deed was claimed also against defendants 2 and 3 on the ground that the sale in the name of the 2nd defendant was really for the benefit of the 3rd defendant. Ext. D is the judgment in that case which was pronounced on 15.4.1108 and Ext. VI is the plaint therein. A decree was given for arrears of rent against the 1st defendant. No relief was granted against defendants 2 and 3. The prayer for recovery of possession of the properties was refused on the ground that Ext. B does not stipulate for forfeiture of the term (which expires only on 27.4.1109) on default of payment of rent and the suit having been brought before the term expired, that is, during the subsistence of the lease, it was premature.