ABDULLA KUNJIPOKKARUKUTTY Vs. AYYAPPAN RAVUNNY

JUDGEMENT

(1.) DEFENDANTS 4 and 5 are the appellants. The suit was to set aside certain decrees and execution proceedings and to recover the plaint schedule property with mesne profits. Plaintiffs 1 to 3 and defendants 1 and 2 are members of an undivided hindu Mitakshara family, 1st defendant is the Manager and the property belongs to the family. It was granted to the plaintiffs' family by the Paliyam in consideration for services to be rendered. 2nd defendant's deceased paternal uncle and the 2nd defenant renewed a promissory note on 14-7-1111 in favour of the 3rd defendant. 2nd defendant's father's brother and his brother renewed another promissory note in favour of the 3rd defendant. 3rd defendant filed two suits on these promissory notes in the Village Court and obtained decrees and in execution of these decrees the property was sold in court auction and purchased by him. He took delivery of the property in execution thereof and then assigned the property to the 5th defendant who is now in possession. 4th defendant is the husband of the 5th defendant. These promissory notes were impeached as not supported by consideration and family necessity and therefore not binding on the family. The 1st plaintiff and his sister filed a pauper suit 14/55 for the reliefs now claimed. That suit was dismissed for non-payment of court-fee and the plaintiffs have again filed this suit for and on behalf of their family. The period of pendency of the earlier proceedings is sought to be excluded in reckoning the period of limitation for this suit. The mesne profits is claimed at 150 parahs of paddy and Rs. 400/- per year. On these allegations they have filed this suit for the reliefs mentioned earlier.

(2.) DEFENDANTS 4 and 5 contended that the 1st plaintiff had already sought for the reliefs now claimed and lost and hence is not competent to file the present suit again. The exclusion of the period of the pendency of the pauper suit cannot be allowed. The suit is barred by res judicata and also by limitation. It is also alleged that the claim of the plaintiffs, if any, is barred by adverse possession and limitation. The promissory notes on the basis of which the suits were filed were executed for consideration and family necessity and the decrees and the court sales that followed are banding on the family. Plaintiffs cannot now question them or seek to set aside them. The profits claimed are excessive. Defendants 4 and 5 have spent large amounts for improving the property. On these averments they contended that the suit must be dismissed.

(3.) THE trial Court found that plaintiffs and defendants 1 and 2 are members of en undivided Hindu joint family. The court below also found that plaintiffs are entitled to challenge the decrees and execution proceedings and also the promissory notes which form the basis of the decrees. These decrees and execution proceedings that followed are found by the court below to be not valid and binding on the family. The promissory notes were also found to be not supported by family necessity. The suit was found to be not barred by limitation and therefore a preliminary decree was passed allowing the plaintiffs to recover Possession of the property. This appeal is filed against that decision,