GEERI KAMMATHI Vs. PADMAVATHI

JUDGEMENT

(1.) THE plaintiff is the appellant. THE suit is for declaration of the plaintiff's title to the plaint property and for recovery of possession of the same with mesne profits after setting aside a claim order, or in the alternative for partition of plaintiff's one half share i the property. THE plaint property is a leasehold interest in 6 cents of land in the mattancheri street. THE jenmi of the property is the Cochin Thirumala Devaswom. THEre are a street house and kayyalappura in the property. THE leasehold interest originally belonged to one Narayanan who assigned it in favour of the plaintiff's mother Sathyabhama under Ext. 1 on 23. 11. 1063. Sathyabhama attorned to the Devaswom and executed a fresh lease deed Ext. 11 on 17. 12. 1063. This lease deed was renewed by her on 2. 1. 1097. Ext. C is the lease deed executed by her on that date. THE plaintiff's case is that on the death of his mother he became the absolute owner of the property and that in any case he is entitled to one half of the same. THE plaintiff's father was one Guna Kammath. Guna kammath and Sathyabhama had 4 children, the plaintiff being the eldest. THE 2nd son was Ranga Kammath who died leaving a son Guna Kammath. Guna Kammath the junior also died leaving a minor son who is the 3rd defendant in the case. THE 1st defendant is the sister of the plaintiff. He has another sister Kaveru by name who is not a party to this suit. D. W. 1 is her husband.

(2.) ON 30. 1. 1095 Sathyabhama and Ranga Kammath together executed a mortgage Ext. XIII in respect of the plaint property to one Kamala for Rs. 150. A suit was filed on that mortgage and a decree was obtained by the creditor. To discharge that liability Sathyabhama and Ranga Kammath executed a usufructuary mortgage Ext. IX in respect of the plaint property in favour of one Bikhari Shenoi for Rs. 275 on 13. 1. 1100. That mortgage right was purchased by Guna Kammath the junior on 12. 1. 1106 under Ext. XIV. ON 28. 1. 1110 Rang kammath and Guna Kammath the junior executed a usufructuary mortgage in respect of the property to one Jenmi for Rs. 200 and took the property back on lease. Exts. X and XI are the mortgage and lease. For a debt due from Guna Kammath one jembla filed Small Cause Suit No. 426 of 1116 of the Cochin Munsiff's Court and obtained a decree against him. In execution of that decree the plaint property was attached and sold on 12. 7. 1119, and the 1st defendant purchased the same. Ext. XVI is the sale certificate in that case. The 1st defendant obtained delivery of possession of the property on 14. 10. 1119 under Ext. XV. ON 27. 10. 1119 the plaintiff filed a petition for redelivery of the property alleging that he was in possession of the same and that the first defendant had no right to obtain delivery from him. That petition was rejected by the district Munsiff. Ext. J. is the copy of the order. The plaintiff seeks to set aside that order and to recover possession of the property.

(3.) THE court below found that the plaint property and the house were the stridhanom property of Sathyabhama and that the plaintiff was not entitled to any share therein. It was also found that the kayyalappura was constructed by Ranga Kammath and that the plaintiff had no right to the same. It was, therefore, held that the claim order in S. C. No. 426 of 1116 was not liable to be set aside and that the plaintiff was not entitled to get delivery of possession of the property or to get partition of one half share in the property. THE suit was accordingly dismissed with costs.