CHINNAPPAN LOUIS Vs. ABUBACKER ALIYARU

JUDGEMENT

(1.) These appeals arise out of O.S. Nos. 539 & 524 of 1976 respectively on the file of the Munsiff's Court, Neyyattinkara. Both suits were tried together and disposed of by a common judgment. Both suits were for redemption of two mortgages evidenced by Exts.A7 to A10.

(2.) The contesting defendants resisted the suit on the following grounds: The plaint schedule properties are portions of a larger extent of property having a total area of 25.12 acres. The original acquirer was one Meeran Pillai Sulthan Pillai. Aliyarukunju Pillai was one of the executants and one of the children of Meeran Pillai Sulthan Pillai. Meeran Pillai had inherited only 31.036 percentage of the original extent of the property and as such what could have been mortgaged by Aliyarukunju Pillai was far less an extent than that is shown in Exts. A7 and A10. Before execution of sale deed marked as Ext.A8, Aliyarukunju Pillai had parted with his right over 50, cents of property as per Exts. B13 and B14 dated 2-1-1121. and 15-7-1121 respectively. At the time of execution of Ext.A8, Aliyarukunju Pillai had right and possession over only 2 acres and 8 1/2 cents, but what was really conveyed as per Ext. A8 to 1st plaintiff was the right over an extent of property measuring 2 acres and 58 1/2 cents. There is a direction in O.P.No.33 of 1973 of the Munsiff's Court, Neyyattinkara that the rights of the parties would be adjudicated only in a suit for partition. Other heirs of Meeran Pillai had executed various mortgage documents and from the mortgagees, 1st defendant obtained assignment deeds. On the strength of the assignment deeds, 1st defendant filed O.A.No.321 of 1974 in the Land Tribunal and obtained a certificate of purchase in respect of the properties as evidenced by Ext. B5. By virtue of Ext. B5, mortgagee's right became merged in the superior title, which the 1st defendant acquired. The suit is bad for non joinder of necessary parties. A receiver was appointed in respect of the entire extent of the property and in the circumstances, the suits filed without leave of the court are not maintainable.

(3.) The Trial Court dismissed both the suits accepting the contentions of defendants and also holding that suits are not maintainable for want of leave of the court to sue the receiver.