KUNJAN Vs. KOCHU PENNU

JUDGEMENT

(1.) This second appeal is by the plaintiff in a suit on a chitty hypothecation bond which has been concurrently dismissed by the courts below.

(2.) There were two divided brothers Achuthan and Aiyappan. The 1st defendant is the widow and the 3rd defendant is the son of Achuthan. The 2nd defendant is the wife of Aiyappan. In or about 1104 while Achuthan was still alive, Aiyappan had joined in a chitty scheme started by the 1st plaintiff. Subsequent to Achuthan's death Aiyappan bid the ticket and received the prize money by getting the 1st defendant on her own behalf and as guardian of her minor son the 3rd defendant, to execute along with his wife the 2nd defendant, a chitty hypothecation bond in favour of the foreman as if the chitty ticket had been taken for the benefit of defendants 1 and 2 from the very inception. This chitty hypothecation bond is dated 24.8.1106 and is filed as Ext. A. The plaint schedule property which belonged to Achuthan and after his death had devolved on the 3rd defendant, was included as item 1 of the hypotheca under Ext. A. The 2nd defendant also charged her property as item 2 of Ext. A but it was released by the foreman before suit and we are no more concerned with it. This suit was filed by the 1st plaintiff foreman and his assignee the 2nd plaintiff for recovery of the 1st defendant's share of the chitty subscriptions, as against her and the schedule property. Defendants 4 to 6 were impleaded as subsequent encumbrancers in the plaint schedule property.

(3.) The suit was resisted by defendants 3 and 4 and 5, on the same footing though by separate written statements. They contended, that the 1st defendant was made party to Ext. A on account of the fraud and undue influence exercised on her by Aiyappan and that neither the 1st defendant nor her son the 3rd defendant, owner of part of the hypotheca had anything to do with the transaction of taking the ticket or receiving the prize thereunder. The 5th defendant was the purchaser under Ext. II dated 26.10.1115 of 50 cents of schedule property from the 3rd defendant after he attained majority and with specific recital that the property was unaffected by any prior encumbrance and further a provision for indemnity in other event. The 4th defendant was the purchaser of all the balance of the property from the 3rd defendant under Ext. I dated 11.11.1117. The plaintiff could not, it was urged, have no relief against the plaint schedule property and the suit had to go.