LAWS(KER)-1974-9-4

PATHUMMA BEEVI Vs. RAJAKRISHNA MENON

Decided On September 06, 1974
PATHUMMA BEEVI Appellant
V/S
RAJAKRISHNA MENON Respondents

JUDGEMENT

(1.) An interesting question of limitation has been debated in this appeal preferred by defendants 2 and 4 to 10 against the decree in O. S. No. No. 141 of 1965, Sub-Court, Palghat. The suit as originally framed, was one for recovery of the amount due under a hypothecation bond, Ext. B-39 dated 11 11 1964 executed by the 1st defendant in respect of the assets of his deceased brother, Vellappa Rowther, who died on 26-6-1962. The 1st defendant purported to execute the hypothecation bond by virtue of authority stated to be derived by him under certain trust deeds, Exts.A-1 dated 9-4-1963 and A-13 dated 21-5-1962. The amount due under the hypothecation bond together with interest claimed in the suit amounted to Rs. 62,749.00. The 2nd defendant in the suit was the widow of the deceased Vellappa Rowther; defendants 3 and 5 to 8 were his daughters, and the 4th defendant, was his only son. The 3rd defendant is now dead, and is represented by his legal representatives defendants 9 and 10. The 3rd defendant had instituted a suit for partition of the assets of Vellappa Rowther O.S. 41 of 1965 impugning the trust deeds Exts. A-1 and A-13. The same was tried along with the suit out of which this appeal arises, namely, O. S.141 of 1965. There were two other suits O.S. 84 of 1965 and O.S. 127 of 1965. It is enough to state that they were also suits for recovery of certain monies. All the four suits were disposed of by the Trial Court by a common judgment, in the first instance in April 1967. That court upheld the contention of the 3rd defendant in the partition suit that the trust deeds were neither genuine nor valid. In O.S. 141 of 1965, it was found that the consideration for Ext. B-39 was made up of two promissory notes, Exts. B-14 dated 23-11 1960 for Rs. 25,000.00, and B-15 dated 5 1 1961 for Rs. 50,000.00, and certain additional sums borrowed. It was held that the amounts due under Exts. B-14 and B-15 had become barred by limitation when the suit was instituted on 31 7 1965 and that to the extent to which the consideration for Ext. B-39 was constituted of these, the same could not be enforced. Therefore, the Trial Court granted a decree for only the additional amounts which went to make up the consideration for Ext. B-39, other than what was covered by the two promissory notes (about Rs. 5,384/-). It also held that the endorsements of payments on the promissory notes were insufficient to save limitation. Against the common judgment, the plaintiff in O.S. No 141 of 1965 preferred A.S. No. 375 of 1967 to this Court; the 7th defendant in the suit for partition (O.S. No. 41 of 1965) filed A.S. 377 of 1967; and against the decision in OS. 127 of 1965 the plaintiff in O.S. No. 141 of 1965 and his brother filed A S. No. 366 of 1967. All the three appeals were disposed of together by a common judgment of this Court dated 11 9 1972. This Court affirmed the finding of the Trial Court that Exts.A-1 and A-13 were neither genuine nor valid. It is enough to notice that regarding O.S. 141 of 1965 this Court allowed the plaintiff's application to amend the plaint, so as to base the suit on the promissory notes. This Court expressed itself thus:

(2.) In pursuance of the above order of remand, the court below by its judgment under appeal, granted a decree for Rs. 56,769.80, with interest thereon, at 6 1/2% from 11 11 1964 till 31 7 1965 and thereafter 6% per annum till payment, with proportionate costs against the estate, of Vellappa Rowther in the hands of defendants 2 to 10; and a personal decree for Rs. 3,230 30 with interest thereon at the same rates for the same periods with proportionate costs against the 1st defendant. It is against this decree that the above appeal has been preferred, by defendants 2 and 4 to 10 in O.S. No. 141 of 1965 (which is the only suit with which we are now concerned). The 1st defendant has preferred a memorandum of cross objections objecting to the personal decree against him for costs.

(3.) We may straightway say that the memorandum of cross objections preferred by the 1st defendant (2nd respondent) against the plaintiff, (1st respondent), in respect of a matter in which the appellant is not interested, is not maintainable and has only to be dismissed. We do so with costs.