THOMAS Vs. MATHAI

JUDGEMENT

(1.) Defendants 1 and 2 in a suit for partition which was decreed by the court below are the appellants. The first respondent is the plaintiff and the second respondent is the third defendant who remained ex parte. The suit was filed by the first respondent claiming 1/3 share in the suit property - 7 cents and 286 square links of land with a two stoned building thereon. The plea of the plaintiff was that the suit property is the property of the plaintiff and defendants 1 and 2 as per partition deed No. 1264/1973 of the Sub Registry, Kothamagalam. It was averred in the plaint that in the month of September 1985, the plaintiff agreed to transfer his rights in the plaint schedule property to defendants 1 and 2 for a price of Rs. 4 lakhs and that he had accepted two lakhs towards price and an agreement for sale (Ext.B1) was executed on 16-09-1985. It was further pleaded that within a week from the date of the agreement defendants 1 and 2 informed him that they did not require the building and demanded back the advance amount and accordingly the advance amount was returned by the plaintiff to defendants 1 and 2. It was also averred that since the sale agreement could not be implemented, the second defendant executed a rent deed in favour of the first defendant and the plaintiff agreeing to pay them Rs. 3,000/- per month and that the rental arrangement continued upto November 1988. It was averred that after November 1988, the plaintiff and defendants 1 and 2 have jointly run lodging business in the plaint building. But in November 1989, the plaintiff came to know that defendants 1 and 2 were not maintaining proper account or paying the plaintiff due share and as such the plaintiff caused to issue the lawyer notice on 27-05-1989 demanding partition. But a reply was given showing false contentions. Thereafter without the plaintiff s consent, the defendants 1 and 2 let out the ground floor of the building to defendant No. 3. It was also averred that as per Ext.A5 mortgage deed 1813/90(Ext.A5) defendants 1 and 2 have mortgaged the property in favour of the third defendant. It was contended that the creation of the document cannot affect the right of the plaintiff. The suit was accordingly filed seeking partition of the property into three equal shares and for allotment of 1/3 share with mense profits from the date of the suit. A declaration that the mortgage deed executed in favour of the third defendant (who remained ex parte in the suit) is not binding on the plaintiff was also sought.

(2.) Defendants 1 and 2 filed a joint written statement in which they admitted that the plaint schedule property belonged to plaintiff and defendants 1 and 2 as per the partition deed. But they denied the plaintiff s case that the agreement for sale Ext. B1 was given a go by. They also denied the allegation that the advance amount of rupees two lakhs was returned by the plaintiff to defendants 1 and 2. It was also contended that the rent deed Ext.A1 was executed only as a security for the payment of share of income until payment of the balance sale price. It is further contended that after the execution of Ext.A1 the plaintiff was paid Rs. 1500/- per mensum till 13-09-1986. The balance sale consideration of rupees two lakhs was paid to the plaintiff in the presence of late brother Varghese and another brother Markose. The plaintiff thus received the entire sale consideration and thereafter the plaintiff has no right over the plaint schedule property. The defendants admitted execution of the mortgage deed in the year 1990. The plaintiff having accepted sale consideration in full is not entitled to seek a partition of the plaint schedule property. Defendants 1 and 2 are owners of the entire property ever since 13/09/1986 and they had every right to mortgage the ground floor to the third defendant. The plaintiff is not entitled for partition. It is alternatively contended that in case the plaintiff is found entitled for partition, the amount paid by the defendants should be ordered to be refunded with interest.

(3.) The learned Subordinate Judge formulated the following issues for trial: