KRISHNA PILLAI Vs. DAMODARA PILLAI

JUDGEMENT

(1.) The 2nd defendant is the appellant. The suit is for declaration of the plaintiffs title to one half of the plaint properties and for recovering possession of the same after setting aside a sale deed executed by the 1st defendant in favour of the 2nd defendant and also the decree and Court sale in O.S. No. 1006 of 1108 of the Thiruvalla Munsiffs Court. The plaint properties belonged to one Easwara Pillai. The plaintiff is his son by his 1st wife, the 1st defendant is his 2nd wife. The marriage between Eswara Pillai and the plaintiffs mother was dissolved in 1105 and after that the former married the 1st defendant. The plaintiffs mother died after some time and subsequently Easwara Pillai died intestate. After the death of Easwara Pillai the 1st defendant executed the sale deed Ext. A in favour of the 2nd defendant for the plaint properties. Easwara Pillai had executed an hypothecation bond charging plaint items 1 and 2. O.S. No. 1006 of 1108 was filed by defendants 3 and 4 for the money due under that bond. Ext. B is the copy of the judgment in that case and Ext. C is the copy of the decree. It is alleged that the plaintiff who was a minor on the date of the suit was not properly represented in the suit and that the decree and execution sale are not binding on him. On these grounds the plaintiffs sued for recovery of possession of one half of the plaint properties with mesne profits.

(2.) Defendants 2, 3 and 4 contested the suit. The 3rd defendant died during the pendency of the suit and defendants 13 and 14 were impleaded as his legal representatives. The 2nd defendant contended that Ext. A is a valid sale deed supported by consideration and good faith, that Easwara Pillai and the mother of the plaintiff had entered into an udampady Ext. 1 by which the plaintiff ceased to have any interest in the properties of Easwara Pillai, that after the death of Easwara Pillai the 1st defendant alone was entitled to the plaint properties and that she was therefore competent to execute the sale deed. It was also contended that the 2nd defendant had discharged certain liabilities that were subsisting on the properties and that in any case he was entitled to get back the amounts utilised by him for discharging these liabilities. He also claimed value of improvements and denied liability for mesne profits. Defendants 3 and 4 contended that the decree and execution sale in O.S. No. 1006 of 1108 were valid and binding on the plaintiff that the plaintiff was properly represented in that suit and that the decree and sale were not liable to be set aside.

(3.) The Court below held that the plaintiffs right to inherit the properties of his father was not extinguished by the udampady Ext. 1 executed by his father and mother. It was therefore held that the plaintiff was entitled to one half of the plaint properties and that the sale deed Ext. A executed by the 1st defendant was not valid and binding on the plaintiffs share in the properties. So far as the decree and court sale in O.S. No. 1006 of 1108 were concerned, the Court below held that they were valid and binding on the plaintiff. Plaint items 1 and 2 were sold for the decree debt in that case and the plaintiff was therefore not allowed to recover possession of those properties. Some of the plaint properties were outstanding on mortgage executed by Easwara Pillai. Plaintiff was allowed to recover possession of one half share in plaint items 4 and 7 and in items 5 and 6 excluding 51 cents. Mesne profits were allowed from the date of decree at the date of Rs. 160 per year, and the parties were ordered to suffer their respective costs.