VARGHESE Vs. LONAN

JUDGEMENT

(1.) The plaintiff is the appellant. The plaint properties originally belonged to one Variathu. He had executed a Will in 1077 bequeathing all his properties to his daughter Anna Meenka and her male issues, one of whom is the 4th defendant. The 5th defendant is the son of another son of hers by name Ouseph who died in 1091. Anna Meenka and Ousephs wife had executed a mortgage in 1091 to one Yohannan Kathanar for the plaint properties and took back the same on lease. Yohannan Kathanar had filed O.S. 979/1100 in the Munsiffs Court of Alleppey for arrears of pattom and for recovery of possession of the properties. The same mortgagors had also hypothecated the properties to one Ummer Kutti who obtained a decree in O.S. 1628/1098 on the same. While so, the 4th defendant filed O.S. 1232/1102 in the Alleppey Munsiffs Court for a declaration of his 1/2 share and for recovery of the same after division by metes and bounds after declaring that the decrees in O.S. 979/1100 and O.S. 1628/1098 and the Otti deed of 1091 to Yohannan Kathanar were not binding on him or his share in the property. The 5th defendant had also filed a similar suit O.S. 1522/1105 for the identical reliefs. These suits were tried together. Subsequently they were compromised on 32.12.1108 by which each of defendants 4 and 5 agreed to pay Rs. 600 to Ummerkutty to get release of his rights over the properties. The Otti deed to Yohannan Kathanar and the decree obtained by his children were agreed to be set aside. While the partition suit was pending, Yohannan Kathanars children executed a sub-mortgage of their right to the 1st defendants father, and on the basis of the same he obtained a decree in O.S. 46/1108. Before the partition suit was compromised the 4th defendant had executed a gift deed Ext. A on 10.11.1102 to his wife and 3rd defendant and her children. By this they were allowed to continue the suit and recover possession of his share in the properties in execution. The donees were directed to maintain the 4th defendant for his life. There was a further provision that in case he was not maintained properly he would be entitled to one-half of the income from the properties that would go to his share. With the compromise, the properties were divided and the plaint and other properties were allotted to the share of the 4th defendant. Defendants 3 and 4, on 24.11.1117 agreed to sell the plaint properties to the plaintiff and executed Ext. B agreement on receipt of an advance of Rs. 50/-. The properties were subsequently sold to him on 24.5.1118. Ext. C is that sale deed. The properties were put in his possession from the date of Ext. B. While he was thus in possession, a receiver had been appointed in O.S. 46 of 1108 mentioned above. The 2nd defendant was the receiver and he obtained possession of the properties on 29.2.1120. The present suit was filed for declaration of the plaintiffs right to the plaint properties and for recovery of possession of the same with mense profits at the rate of Rs. 225 a year.

(2.) The 5th defendant was the main contesting defendant. It was not mentioned in the plaint why he was impleaded in the case. But he contended that at the time of the compromise the 4th defendant agreed to pay him Rs. 100/- to equalise the shares and executed an agreement in his favour. Since this amount was not paid he had filed the suit O.S. 626/1112 and obtained a decree thereon. In execution of this decree he had attached the plaint properties on 30.5.1118 and sold them in court auction on 16.12.1118. He himself purchased the same and obtained delivery of possession on 22.11.1120. Ext. X is copy of that delivery kychit. He therefore contended that he was in rightful possession and that he was not to be evicted. He also stated that Ext. A gift deed in favour of the 3rd defendant and her children by the 4th defendant was without any consideration, that it was vitiated by lis pendens, that on the date of the gift, the 4th defendant was not entitled to the plaint properties, and that the gift deed was also not intended to take effect. He had no objection to the decree in O.S. 46/1108 being set aside. According to him the mesne profits from the plaint properties would not be more than Rs. 60 a year.

(3.) The lower court found that though Ext. A was executed during the pendency of O.S. 1232/1102 it did not affect the plaintiffs case in any way that by Ext. A the 4th defendant was not divested of the ownership of the plaint properties, that by virtue of the agreement between defendants 4 and 5, the 5th defendant became entitled to get Rs. 100 from the 4th defendant by way of equalisation of the shares, that the decree obtained by the 5th defendant against the 4th defendant in O.S. 626/1112 was valid, that the attachment by the 5th defendant of the plaint properties was also valid and binding on the plaint properties, that the plaintiff was not entitled to question the same, and that the decree and execution proceedings in O.S. 46/1108 were liable to be set aside. Since the decree and execution proceedings in O.S. 626/1112 obtained by the 5th defendant were found binding on the plaint properties, the suit was dismissed with costs to the 5th defendant.