NEELAKANTA PILLAI Vs. ABRAHAM

JUDGEMENT

(1.) The 5th defendant is the appellant. The suit was for declaration of title and recovery of possession of the plaint schedule property with mesne profits. Kallupurakkal Varkey Mathen and his two brothers Varkey Joseph and Varkey Varghese effected a partition in 1112 whereby one half of the suit property fell to the share of Mathen and the other half to Varghese. They jointly executed a lease in favour of the plaintiff in the year 1113. Subsequently Mathen purchased the half right of Varghese and thereby became the full owner of the property. Mathen died in 1118 issueless. The 1st defendant is his widow. On his death the suit properties devolved on his two brothers in equal shares. The 1st defendant was under law entitled to take the yield from one half of the plaint property. As per a compromise arrangement the 1st defendant gave up her life interest in the property in favour of Joseph and Varghese. Joseph thereafter sold his half right in the suit property to the plaintiff under Ext. C and in 1118 Varghese sold his half share in favour of one Mariamma under Ext. D, who in turn sold the same to the plaintiff under Ext. E. The plaintiff thus became the full owner of the property. While matters stood thus a proceeding under S.145 of the Criminal Procedure Code was started before the First Class Magistrate's Court, Alleppey, by the 1st defendant for declaring her possession. The Magistrate on 3-12-1124 declared the possession of the 1st defendant. It was to set aside this order by the Magistrate that the present suit was filed by the plaintiff. In pursuance to the decision in the M. C. Proceedings 1st defendant took possession of the property and withdrew an amount of Rs 1,361/- deposited by the receiver in the M. C. proceedings. The plaintiff alleged that the 1st defendant had no manner of right in respect of the property or the income deposited by the receiver. The 5th defendant obtained a decree in O. S. 133 of 1121 of the Krishnapuram Munsiff's Court on a promissory note alleged to have been executed by deceased Mathen. The said decree was obtained, it was alleged, against the 1st defendant as heir of Mathen. In execution of that decree the property was attached & sold, & it was purchased by the 5th defendant in court auction. He obtained delivery on 18-6-1952. This decree was also impeached by the plaintiff in the plaint as not binding on the estate of deceased Mathen, on the ground that the 1st defendant had no right to represent the estate of Mathen. Therefore the plaintiff claimed that the suit property and the amount deposited by the receiver and drawn by the 1st defendant belonged to him. He also prayed for cancellation of the decision of the Magistrate in the M. C. Proceedings, and for recovery of the property with mesne profits.

(2.) The only contentions with which I am concerned in this appeal are the contentions raised by the 5th defendant. He contended that deceased Mathen had executed a pro note in favour of the 2nd defendant which was endorsed by the 2nd defendant in his favour, and that he instituted the suit in O. S. 133/1121 and obtained the decree impleading the 1st defendant as heir of deceased Mathen, that the estate was substantially represented by the widow of Mathen and that he purchased the property and became the owner thereof.

(3.) On these contentions the lower court has entered findings; they are as follows: