GANESHA PAI Vs. KESAVA PAI

JUDGEMENT

(1.) THIS is an appeal against the preliminary decree in a suit for partition. The parties are Gowada Saraswatha Brahmins governed by the hindu Mithakshara Law. Plaintiffs 1 to 3 are brothers. Their father was defendant 2. He died during the pendency of the suit in the lower court. Defendant 18 is the widow of defendant 2 and the mother of the plaintiffs.

(2.) THERE are 4 items of properties in the plaint schedule. Items 1 and 2 are garden lands held on verumpattom from the Cochin thirumala Devaswom, and items 3 and 4 are garden lands held on kanom from the same Devaswom. According to the allegations in the amended plaint, plaint items 1 and 2 are the ancestral properties of the joint family of defendant 2 and the plaintiffs, and plaint items 3 and 4 are properties purchased with the sale proceeds of another ancestral property belonging to the said joint family. All the plaint items thus belong to the joint family of defendants 2 and the plaintiffs, and defendant 2 and plaintiffs 1 to 3 have equal rights in them. On 1. 8. 1102 defendant 1 took an usufructuary mortgage, Ext. XXI, for these properties from defendant 2 alone and obtained possession of them. Ext. XXI is not supported by consideration and family necessity, and plaintiffs were also not parties to it. It does not, therefore, bind the plaintiffs or their shares in the plaint properties. With a view to obtain the properties for himself, defendant 1 advanced a further sum of Rs. 300 to defendant 2 for immoral purposes and took from him a pro-note on 11. 8. 1103, and on that pro-note he obtained a decree, Ext. N, against defendant 2 in O. S. No. 496 of 1104 of the cochin Munsiff's Court and attached and purchased the plaint properties in execution of that decree and also got delivery of them in pursuance of the court sale. The shares of the plaintiffs in the plaint properties were not liable to the attached and sold in execution of the decree in O. S. No. 496 of 1104, and, in fact, their shares have not also been sold in execution. The decree and execution proceedings, including the court sale, do not, therefore, affect the plaintiffs or their shares in the plaint properties. On the above allegations, plaintiffs prayed for partition and recovery of possession of 3/4 share in the plaint properties. They also sought for a declaration, that the mortgage, Ext. XXI, and the decree and execution proceedings in O. S. No. 496 of 1104 were not binding on them and their shares in the plaint properties. It was further prayed that, in the event of Ext. XXI being held to be binding on the plaintiffs and their shares in the plaint properties, they might be allowed to redeem that mortgage also so far as their shares were concerned. Plaintiffs stated that, if they had to redeem Ext. XXI, they were ready to pay the value of the improvements effected by defendant 1 and those claiming under him, and sought to set off against the value of improvements payable by them the damages due to them on account of the alleged dismantling and removal by defendant 1 of a building worth Rs. 15,000 from plaint item 4. Mesne profits, past and future, at the rate of Rs. 450/- per year, were also claimed.

(3.) THE lower court found that the plaint properties belonged to the joint family of defendant 2 and the plaintiffs and that the mortgage, Ext. XXI, was fully supported by consideration and family necessity and was binding on the plaintiffs and their shares in the plaint properties. With regard to the decree in O. S. No. 496 of 1104, the lower court found that the amount under the pronote was not borrowed for any immoral or illegal purposes of defendant 2 and that Ext. E was, therefore, binding on the plaintiffs on account of their pious obligation as the sons of defendant 2 to discharge his debts. Nevertheless, it held that the execution sale in that suit was not binding on the plaintiffs, since what was actually sold thereby was only the share of defendant 1 and did not include the interests of his sons. THE lower court also found that the ages of the plaintiffs given in the plaint were correct, that the suit was not barred by adverse possession or limitation, and that defendant 3 could not be said to be a bon fide purchaser who had bought the property without notice of the plaintiffs' rights. As a result of these findings the lower court passed a preliminary decree for partition, leaving open the issues relating to value of improvements, damages for waste and claim for mesne profits. THE preliminary decree reads as follows: " (a) It is declared that the execution sale proceedings in O. S. No. 496 of 1104 on the file of the Cochin Munsiff's Court are not binding on the plaintiffs and three-fourth of the equity of redemption over the plaint properties; (b) It is also declared that Ext. XXI usufructuary mortgage is binding on the plaintiffs and the plaint properties; (c) It is further declared that the plaintiffs are the owners of three-fourth of the suit properties and that they are entitled to a partition of the same by metes and bounds; (d) THE plaintiffs are entitled to redeem the said three-fourth share in the plaint properties on depositing Rs. 6,750 and the value of improvements; (e) THE value of improvements, was committed in the plaint properties, if any, and mesne profits will be determined at the time of final decree; (f) Past mesne profits for the plaintiffs are disallowed; but they are entitled to three-fourth of the future mesne profits from the date of the deposit of redemption price of Rs. 6,750 and the value of improvements, if any, in the properties due to the defendants; (g) THE amounts towards waste and mesne profits, if any, due to the plaintiffs will be set off towards the amounts due to the defendants; (h) THE plaintiffs will pay the court fee due to the sirkar and the State will have first charge over the three-fourth share of the equity of redemption over the plaint schedule properties decreed to the plaintiffs, under this decree, under 0. 33, R. 10, C. P. C. ; and (i) Parties will suffer their respective costs. THE plaintiffs will apply for the issue of a commission for dividing the properties by metes and bounds within two months from the date of this decree".