JANAKI AMMA Vs. VENKITASUBBA IYER

JUDGEMENT

(1.) This appeal arises out of a suit for money due under four simple mortgages or hypothecation bonds. There were ten items of properties in the plaint schedule, and the suit has been decreed as regards all of them. The appeal relates only to plaint schedule item 1, and the question raised by the appellant, defendant 19, who claims the said item by title paramount, is whether it is liable at all for the plaint claim. Defendants 4 to 27 were impleaded in the suit on the allegation that they were living in the plaint properties and it was therefore necessary to have them on the party array in order to enable the plaintiff to get an effective decree.

(2.) According to the plaint allegations, plaint schedule items 1 to 10 were the ancestral properties of two brothers, Subramonia Pillai and Ponnuswami Pillai, both of whom are now dead. Ponnuswami Pillai was the elder of the two brothers and defendant 3 is his son. Defendants 1 and 2 are the widow and son of Subramonia Pillai. Two of the plaint mortgages, Exts. D and A, were executed by Subramonia Pillai, Ext. D on 10-4-1109 and Ext. A on 23-4-1110, and the remaining two, Exts. B and C, were executed after, his death by defendants 1 and 2, Ext. B on 2-111113 and Ext. C on 16-8-1118. After the execution of Ext. A Subramonia Pillai filed a suit, O. S. 81 of 1110 of the Trivandrum District Court, for partition and recovery of possession of his one-half share in plaint schedule items 1 to 10. While that suit was pending trial Subramonia Pillai died, and detendants 1 and 2 were im-pleaded therein as his legal representatives. By the decree Ext. E dated 21-6-1116, O. S. 81 of 1110 was dismissed so far as plaint schedule items 2 to 10 were concerned and one-half of plaint schedule item I was given to defendants 1 and 2 (additional plaintiffs therein) on account of Subramonia Pillai's share in the ancestral properties. It was while an appeal against Ext. E decree filed by defendants 1 and 2 was pending in the High Court that the plaintiff brought the present suit, & he had mentioned in the plaint that the appeal of defendants 1 and 2 was pending in the High Court.

(3.) Defendant 19 disputed the plaintiff's right to get a decree charged on plaint schedule item 1. She contended that the said item belonged to her and that defendants 1, 2 and 3 and Subramonia Pillai and Ponnuswami Pillai had no right to it, and so the mortgages executed by Subramonia Pillai and defendants, 1 and 2 were not binding and could not create any charge on it. According to her, her grand-mother Ama Parvathi, mother Parvati Lakshmi and herself had successively been in possession of the property for over 60 years and even if Subramonia Pillai and others had any right to it their rights have been extinguished by the long adverse possession of herself and her predecessors-ininterest. She also contended that the decree in O. S. 81 of 1110 was a collusive one and that it was not binding on her as she was not a party thereto. In the plaint defendant 19 was described as a Vellala lady. She denied she was a Vellala and contended that she was a Nair. In a suit, O. S. 1498 of 1093 of the Tri-vandrum District Munsiff's Court, filed by defendant 8's sister against defendant 3 and one Muniswami Mudaliar for recovery of possession of Ponnuswami Pillai's share in plaint schedule item 1 on the allegation that he had sold his share to defendant 3's sister and that Muniswami Mudaliar was in possession of the property under a lease from Ponnuswami Pillai, it had been found that Ponnuswami Pillai had leased the property to Muniswami Pillai and his wife Par-vathi Lakshmi. Ext. F is the copy of the judgment in that suit. The suit itself was dismissed by Ext. F on the find-ins that the sale deed executed by Ponnuswami Pillai in favour of defendant 3's sister who was his daughter, was a sham document brought into existence for defeating his creditors and had not taken effect; and although in view of this finding and the dismissal of the suit it was unnecessary to consider in that suit the case that Muniswami Mudaliar was in possession of plaint item 1 under a lease, that question too was considered in that suit and a finding that he was in possession under a lease was recorded. The case of the plaintiff in the present suit was that defendant 19 was in possession of plaint item 1 having obtained possession of it from the above lessees after their death. Defendant 19 admitted she was Parvathi Lakshmi's daughter. But she denied that Muniswami Mudaliar was her lather or even the husband of her mother. According to her, it was to bolster up the case that she was Muniswami Muda-liar*s daughter that the plaintiff had falsely described her in the plaint as a Vellala, and all the proceedings in O. S. 1498 of 1093 were fraudulent and not binding on her. About 1 cent and 60 sq. links of land from plaint schedule item 1 was acquired by the State in 1118 or 1119 and the compensation amount for the same was awarded by the District Court to defendant 19. Likewise, an obstruction petition filed by defendant 19 when as decree-holders in O. S. 81 of 1110 defendants 1 and 2 applied to get delivery o the land allotted to them under Ext. E, was allowed by the District Court on the findings that she was in possession of item 1 in her own right. The judgment in the Land Acquisition Case, Ext. 1, and the order on the obstruction petition, Ext. G or III, were also relied upon by defendant 19 in support of her contention that her grand-mother, mother and herself had been in possession of plaint schedule item 1 for over 60 years and Subramonia Pillai and his brother and defendants 1 to 3 had no subsisting title to it and it belonged absolutely toiler. On the other hand plaintiff relied upon the finding in Ext. F about the lease and contended that defendant 19's grand-mother and mother as well as her father were in possession as lessees of Ponnuswami Pillai who was the head of the joint family consisting of himself, Subramonia Pillai and defendants 1 to 3, that defendant 19 had only obtained possession of the property from the above lessees, and that her possession being therefore only permissive possession Subramonia Pillai and defendants 1 and 2 had a subsisting title on the date of the mortgages and there was no scope for a plea of adverse possession.