MARIE FERNANDEZ Vs. MADHAVI

JUDGEMENT

(1.) Both these appeals are directed against the decree in O.S. No. 21 of 1121 on the file of the Trivandrum District Court. The 1st defendant along with her assignee has preferred A.S. No. 614 challenging the correctness of the decree so far as it is against the 1st defendant. The plaintiff has preferred A.S. 676 against that portion of the decree, which is against her.

(2.) The plaint schedule properties belonged to one Gomez and they had been hypothecated in favour of the 1st defendant on 28.8.1094 for a consideration of Rs. 2200/-. On the death of Gomez these properties were partitioned by his three sons and each of them took the properties separately as shown in Schedules A, B and C, subject to the liability to discharge the subsisting debts. John George Gomez, to whose share the A schedule properties were allotted, had been directed to pay off the hypothecation debt due to the 1st defendant. For a few years he continued to pay the interest due on that debt, and thereafter he sold the A schedule properties to his son inlaw Elias Fernandez with a direction to discharge the entire debt. The vendee failed to comply with that direction and accordingly the 1st defendant sued on her hypothecation bond and obtained the decree in O.S. No. 82 of 1107 for realisation of the debt charged on the entire properties covered by Schedules A, B and C. By that time the ownership of these properties had passed on to other persons. The purchaser of the A Schedule properties was therefore impleaded as the 17th defendant and the purchaser of the B and C schedule properties was impleaded as the 16th defendant, in O.S. 82 of 1107. It was with these persons on record that the decree in that case was obtained by the present 1st defendant. In execution of that decree all these properties were sold in court auction and were purchased by the 1st defendant on 1.5.1120 in satisfaction of the decree amount due to her.

(3.) The present plaintiff claims title to these properties under the sale deeds, Exts. E, F and G, taken from defendants 17 and 16 in O.S. 82 of 1107. Ext. E is the sale deed executed in her favour by the 17th defendant in respect of the A schedule properties. Exts. F and G are the sale deeds executed in her favour by the 16th defendant, who is her own husband, in respect of the B and C schedule properties. All these three sale deeds came into existence after the commencement of the litigation in O.S. 82 of 1107. On the strength of the title thus acquired by the plaintiff, she has instituted the present suit to set aside the decree and the execution proceedings in O.S. 82 of 1107 and for a declaration that they are not binding on her or her interest in the plaint schedule properties. The question of damages, representing the consideration paid by the plaintiff under Exts. E, F and G which she had claimed by way of alternative relief, has not been raised in the present appeals, and hence it is unnecessary to deal with that question. The decree in O.S. 82 of 1107 is impeached mainly on three grounds, viz.,