THOMMAN THOMMANKUNJI AND ORS. Vs. KUNJUMEETHIYAN KOCHUKUNJALI NARAYANA

JUDGEMENT

(1.) THESE three are connected appeals. The Appellants are same in all these cases. In A.S. 212 and 214 of 1122, the Respondent is the same, whereas in A.S. 213 of 1122, there are two more parties, besides the Respondent in A.S. 214 of 1122. These three appeals were concerned only with the claim advanced by the Plaintiffs against the common Respondent. Plaintiff 1 in O.S. 33 of 1110 is the sister of Plaintiff 2 and Defendant 3. Defendant 4 is their mother. The father of the Plaintiff and the husband of Defendant 4 was one Thomman, the deceased elder brother of Defendants 1 and 2. Thommen's father was one Thommen Kunji who died in 1089. Thommen died in 1091. The exact date of his death was not known. But it could, be between the 15th and 26th of Kanni 1091. At the time of Thommen's death, Plaintiffs 1 and 2 and Defendant 3 were minors. The properties inherited by Thommen from his father Thommen Kunji had not been divided and they were in the possession of Defendants 1 and 2. The properties described in A schedule to the plaint were those inherited by the three brOrs. The properties in the B schedule were those acquired by Thomman with his own funds, and to these properties Plaintiff 2 and Defendant 3 were the only heirs, subject however to Plaintiff 1's claim for streedhanam.

(2.) AS regards Defendant 14 in O.S. 33 of 1110, who is Respondent 1 in all the three appeals, the Plaintiffs' case is as follows: Defendant 14's father and his brother were co -foremen in chitty started in 1080 with a capital of Rs. 12,000. Thommen was a subscriber for one ticket in this chitty from the very beginning, and at the time of his death, 22 drawings were already over. After his death, due to the helpless condition of his wife and children, they did not subscribe for the further instalments in the chitty. The chitty terminated in 1100, so that as the legal representatives of Thomman, they were to get Rs. 6600 and interest from 1100 on account of paid up subscriptions. The suit in O.S. 34 of 1110 (A.S. 213 -of 1122) is for the realisation of this chitty money. After Thomman's death, Defendants 1 and 2 in O.S. 33 of 1110, treating the chitty asset to be a. family concern, prized the ticket and brought into existence a chitty hypothecation bond Ex. X on 16 -2 -1092. Defendant 4's name appears there as one of the executants. She had not really joined in the execution of the same and she had also not received any amount under Ex, X The prize amount said to Slave been received by dependents 1 and 2 was also not utilised for discharging any of Thomman's debts. Subsequently, on the allegation that default in the payment of futures subscriptions was committed from the 28th instalment, Defendant 14's father filed O.S. 57 of 1095 on Ex. X for future subscriptions and obtained a decree in the Parur District Court on. 1 -11 -1097. Exhibit E is copy of that decree. The properties hypothecated were items 65, 66 and 67 in A schedule, and item 13 in the B schedule. In execution of that decree, these properties were purchased by the decree -holder in Court auction. Exhibit XVI is the sale Sannnd. These properties were obtained delivery of possession by the auction -purchaser. The decree and the execution proceedings were attacked by the Plaintiffs. It was stated, that though the Plaintiffs and Defendant 3 were added as Defendants in that case, with their mother Defendant 4 to represent their, there was no service of notice on the petition to appoint the guardian, nor was there any express consent of guardian to act as such. The guardian was not aware of the proceedings in the suit and execution. She was also not a competent guardian. No notice in execution was served on Defendant 4 and so it was stated that the execution proceedings would not be binding on the Plaintiffs and Defendant 3. In the present suit, the Plaintiffs therefore claimed Thommen's one third share in A schedule items 65, 60 and 87 and also the entire mortgage right over item 13 in B schedule. They had also mentioned these three items in A schedule as items 10, 11 and 12 in the B schedule. In the plaint, it had not been mentioned why these properties were repeated in the two schedules. But it was admitted before us that the B schedule items 11 and 12 were mentioned separately, as Thomman had the mortgage right over these properties. Evidently, therefore, their prayer in the plaint has to be taken as one for the declaration of their right over the mortgage amount.

(3.) THE lower Court upheld Defendant 14's contention and dismissed the suits O.S. 34 and 35 of 1110. Since O.S. 33 of 1110 related to the reliefs claimed against the other persons also that suit was decreed, except as regards Defendant 14 and the properties claimed by him. The suit was dismissed so far as he was concerned. These three appeals were therefore filed by the Plaintiffs, resting their claim to the properties in the possession of Defendant 14. Though the suit against Defendant 14 was dismissed, it was seen that the lower Court had given a decree to the Plaintiff as regards item 13 of B schedule properties. The sale sannad Ex. XVI in favour of Defendant 14 related to items 65 to 67 in A schedule and item 13, in B schedule. So, when the suits were dismissed there should not have been any decree in Plaintiff's favour relating to the B schedule item 13. This was probably due to the contentions of Defendant 14 confining his case to items 65, 66 and 67 of the A schedule. Vide Para 6 of his written statement in O.S. 33 of 1110, though in Paras. 9 to 11 of the written statement in O.S. 35 of 1110 he had put forward a claim to the mortgage right over the properties scheduled in that suit which was the same as item 13 in 3 schedule. Anyhow, the Judge had given Plaintiff 2 a decree for one -half of B schedule item 13, evidently referring to one -half of the mortgage right over those properties. On payment of necessary Court -Fees, Defendant 3 who was subsequently transposed as Plaintiff 3, was also allowed to get the remaining one -half. Defendant 14 had not appealed against this decree and so that had become final. He had filed objections to certain findings regarding the question relating to 'res judicata' by virtue of Ex. XXIV decision, and limitation.