THARIATHU Vs. ACHUTHA KURUP

JUDGEMENT

(1.) The second defendant in O.S. No. 21 of 1120 on the file of the District Court of Parur is the appellant in A.S. No. 800 of 1950. He is the third defendant in O.S. No. 31 of 1104 of that court and is the appellant in A.S. No. 105 of 1952. The plaintiff is the same in both the cases.

(2.) The properties which are the subject matter of O.S. No. 21 of 1120 belonged to the plaintiff's father, deceased Krishna Kurup. He was the second husband of the plaintiff's mother, Parvathi Amma. The first defendant is Parvathi Amma's son by her first husband, Kutta Kurup. Krishna Kurup died in 1093. The plaintiff was a minor at the time of his death. Plaintiff attained majority in 1102. The plaintiff's case is that his mother was of unsound mind even during the life time of Krishna Kurup and that she continued in that condition till her death in 1113. It is also alleged in the plaint that she was completely under the influence of the first defendant and that she was made to execute along with him certain deeds of alienation in respect of some of the plaint properties. When the plaintiff came of age he instituted O.S. No. 31 of 1104 for partition of his one half share in the plaint properties and for setting aside the alienation in respect of that share. The alienations were impeached on the ground that the first defendant had no right in the properties, that the plaintiff's mother was not of sound mind at the time of the execution of the documents, that the documents were executed as a result of undue influence exercised by the first defendant and that they were not supported by consideration and necessity. The suit was decreed except in respect of one hypothecation bond for Rs. 125/- that stood in the name of the 16th defendant in that case (i.e., the third defendant in this case). During the pendency of the suit the plaintiff's mother, who was the second defendant, died and the plaintiff was recorded as her legal representative. He also moved for an amendment of the plaint so that he might be allowed to recover possession of his mother's share also in the properties. The amendment was not allowed by the Trial Court. The third defendant in that case (i.e., the second defendent in this case) and the 16th defendant (i.e., the third defendant in this case) preferred appeals from the decision. The High Court confirmed the decision of the Trial Court but directed that in partitioning the properties by metes and bounds the allotment of the plaintiff's share should, as far as possible, be made out of the properties which have not been alienated. The plaintiff filed a memorandum of objection in the appeal filed by the 16th defendant in which he prayed that he might be allowed to amend the plaint so as to claim relief in respect of his mother's share also in the properties. This prayer was not allowed by the High Court. In execution of the final decree passed in the case the plaintiff recovered possession of his one half share in the properties. The present suit was brought for recovery of the other half share in the properties after getting the alienations set aside in respect of that share also. Plaintiff also claimed mesne profits from the defendants in possession of the different items of properties.

(3.) The second defendant is an alienee in respect of items 2 and 3. The third defendant is in possession of item No. 1. Under the final decree passed in O.S. No. 31 of 1104 the second defendant was allowed to retain possession of items Nos. 2 and 3 and the third defendant item No. 1. Defendants 4 to 6 got 15 cents in three other items under that decree. The first defendant contended that he was entitled to one half share in the properties left by his mother. He died during the pendency of the suit and his legal representatives were impleaded as defendants 7 to 15. Defendants 2 and 3 filed separate written statements. They denied the allegation that the plaintiff's mother was insane at the time of the execution of the documents impeached by the plaintiff and that she was under the influence of the first defendant. They also contended that the documents were supported by consideration and necessity. They questioned the right of the plaintiff to impeach the alienations as regards his mother's share. It was also contended that the suit was barred by limitation as it was brought more than three years after the death of the plaintiff's mother and that the rate of mesne profits claimed in the plaint were excessive. The third defendant further contended that he was not liable to pay any mesne profits until he was paid the sum of Rs. 125/- due to him.