KARTHIYANI AMMA Vs. SUDASUNDARAN

JUDGEMENT

(1.) The second appeal arises from a suit for partition after setting aside a court auction sale. Plaintiff's father Vasudeva Menon had undivided share over nine items of properties. The properties originally belonged to his tavazhi and were set apart to Vasudeva Menon and his mother Ummattu Amma in a partition of the year 1963. Vasudeva Menon pre-deceased his mother. His rights are alleged to have devolved on his wife, the 8th defendant and children, viz. plaintiff and defendants 9 to 13. The mother of Vasudeva Menon was also one of his legal representatives. A suit was filed against the legal representatives of Vasudeva Menon as O. S.203 of 1967 before Munsiff's Court, Ponnani seeking recovery of money due from Vasudeva Menon. That suit was decreed and in execution, plaint schedule properties excluding item No.6 were sold and purchased by one Gopalan Nambiar (D17) in court auction. It appears that Ummattu Amma, the other cosharer had gifted her rights in favour of 14th defendant. Ext. B1 is the registered gift deed executed on 15. 3. 1967. After D17 purchased the rights of Vasudeva Menon in court auction he executed a release in favour of the 14th defendant in respect of the properties except item No 3 which had already been sold by him to others. Fourteenth defendant was thus keeping possession of plaint' schedule items excluding' item No. 3 and that property was possessed by defendants 15 and 16, After plaintiff attained majority he filed the present suit O. S.92 of 1980 before Munsiff Magistrate's Court. Pattambi seeking partition of his 1/14th share over the plaint schedule items after setting aside the court sale in favour of 17th defendant.

(2.) Defendants 1 to 8, 16 and 17 did not file any written statement In the written statement filed by defendants 9 to 13 they wanted separation of their shares. The suit was resisted by 14 defendant who claimed to be the absolute owner of the plaint schedule items except item No. 3. He contended that plaintiff was represented in the suit and in the execution petition by his mother who was an able woman and had done everything to protect the interests of the minors including plaintiff. Of the items mentioned in the plaint schedule items 7, 8 and 9 were in the possession of tenants and only the remaining items are in direct possession. Fourteenth defendant is in possession of items 1, 2 and 4 to 6. She had obtained pattayam with respect to item No. 6 also. She therefore disputed the rights of plaintiff to claim partition and to get the court auction sale set aside.

(3.) The fifteenth defendant also raised similar contentions and claimed rights over item No. 3 on the strength of the assignment executed by the 17th defendant. According to him the rights of plaintiff if any are barred by adverse possession and limitation.