KUTTY AMMA DEVAKI AMMA Vs. THOMMY YOHANNAN

JUDGEMENT

(1.) These appeals arise from two cross suits before the Thiruvalla District Munsiffs Court. A.S. No. 391 of 1951 arises from O.S. No. 258 of 1117 and A.S. No. 503 of 1953 from O.S. No. 149 of 1123. The plaint schedule property in the two suits is one and the same. It consists of twelve paras of paddy land and it belonged originally to the tarwad of the plaintiff in O.S. No. 258. In a partition arrangement evidenced by Ext. III (copy), dated 17.3.1097, one sixth out of it went to Govinda Pillai Krishna Pillai, defendant 1 in O.S. No.149 of 1123 and the remaining five sixth of his uncle Parameswaran Pillai Narayana Pillai. Govinda Pillai Krishna Pillai is the uncle of the plaintiff in O.S. 258 and Parameswaran Pillai Narayana Pillai was her grand uncle. Though under Ext. III there was a division of the right into five sixth and one sixth, it is common ground that no division by metes and bounds was ever made. Govinda Pillai Krishna Pillai has all along been away in Allahabad and according to the plaintiff in O.S. 258, Parameswaran Pillai Narayana Pillai remained in possession of the entire property. After his death in 1109, the plaintiff would have it that her mother Kutty Amma obtained possession and continued to be so until her death in Kanni 1116 and that thereafter the property passed into her possession. On these allegations she instituted O.S. 258 to obtain a permanent injunction restraining defendant 1 in the suit from interfering with her possession. Defendant 2 to the suit is the plaintiffs own father and according to her he was colliding with defendant 1. Subsequent to the institution of the suit the brother of defendant 1 and some others were made parties to the suit at their own instance.

(2.) Defendant 1 contested the suit. He claimed to be in possession of Parameswaran Pillai Narayana Pillais five sixth share as per an usufructuary mortgage, Ext. IV dated 3.11.1116. According to him after the partition evidenced by Ext. III, the said Narayana Pillai had possession only of his five sixth share and the remaining one sixth was looked after by defendant 2, the plaintiffs father for and on behalf of Govinda Pillai Krishna Pillai. On 28.2.1106 Parameswaran Pillai Narayana Pillai executed a chitty hypothecation bond (Ext. II) in favour of defendant 1 in the sum of Rs. 600. Narayana Pillai died in 1109 (28.12.1109) and his properties devolved on his widow Narayani Amma and his son by a predeceased wife, by name Narayana Pillai Parameswaran Pillai. Until 24.4.1111 the said Parameswaran Pillai remained possession of Narayana Pillais estate when a division was effected between him and the widow -- see Ext. 1. Under that division Narayana Pillais five sixth share in the plaint schedule property was, together with some other items, allotted to the share of the widow, and she undertook the liability to discharge the debt due to defendant 1 as per Ext. II. She died in 1113 and under her Will (Ext. VI) her sisters granddaughter, one Ambika Amma, claimed title to all her properties. In Edavom 1116 the said Ambika Amma made an application before the Thiruvalla District Munsiffs Court signifying her intention to liquidate the amounts due to defendant 1 as per Ext. II under the provisions of the Debt Relief Act -- vide Ext. VII (21.10.1116). Afterwards defendant 1 and Ambika Amma came to terms and she executed Ext. IV in favour of the former. The application under the Debt Relief Act was got dismissed on 31.12.1116. On the same day as Ext. IV was executed in favour of defendant 1, defendant 2 executed a pattomchit (Ext. V) to defendant 1 averring that the sugar cane cultivation on the property was made by Ambika Amma and that after the canes were cut and removed in Chingom (1117), he will surrender possession to defendant 1 on 30.1.1117. Defendant 1 would have it that defendant 2 surrendered possession to him on the said date as per the undertaking embodied in Ext. V. This is how defendant 1 claimed to be in possession of the five sixth share of the plaint schedule property which Parameswaran Pillai Narayana Pillai got under Ext. III. Defendant 2 remained ex parte. Defendant 3 supported his brother, defendant 1 and defendant 4 was only interested to remove the sugar cane grown by him on a portion of the property.

(3.) O.S. 258 was first disposed of on 29.3.1123 and the decision went in favour of the plaintiff. Defendants 1 and 3 took the matter in appeal before the High Court in A.S. 266 of 1123, but before filing the appeal they instituted O.S. 149 of 1123 in the lower court for a division by metes and bounds of the five sixth share mortgaged to defendant 1 under Ext. IV. To that suit Govinda Pillai Krishna Pillai is defendant 1, Kutty Amma Devaki Amma (the plaintiff in O.S. 258) defendant 2, her father (defendant 2 in O.S. 258) defendant 3, Ambika Amma (the mortgagor in Ext. IV) defendant 4 and the receiver appointed in O.S. 258 defendant 5. The learned District Munsiff who disposed of O.S. 258 had confined his attention to the question of possession alone and the High Court thought that a disposal of the suit based on a consideration of the mere question of possession was not satisfactory. In view thereof and also in view of the institution of O.S. 149, A.S. 266 of 1123 was allowed and the case remitted to the lower court for retrial. The two suits were directed to be heard together and the judgment remitting the case contains a specific direction that the rival titles the parties set up to the property should be adjudicated upon. The revised judgment in O.S. 258 is one dismissing the suit. In O.S. 149 plaintiff 1 (defendant 1 in O.S. 258) has been given a decree for partition. Hence these appeals.