MARY GEORGE Vs. LILLY

JUDGEMENT

(1.) DEFENDANTS 1 to 5 in O. S. No. 392 of 2005 on the file of the Sub court, Ernakulam are the appellants in this Second Appeal. The said suit was one for partition and separate possession of the plaintiffs' 1/4th share over the plaint A and B schedule properties admeasuring 29 cents and 24 cents respectively after setting aside Ext. B10 assignment deed dated 28. 5. 1953. The suit was originally filed before the Munsiff 's Court, Ernakulam as O. S. No. 1320/2001 on 20. 7. 2001. Subsequently on 4. 4. 2005 it was returned for presentation before the Sub Court since the valuation exceeded the pecuniary jurisdiction of the Munsiffs Court. The plaint was thereafter presented before the Sub Court on 30. 6. 2005. The Trial Court dismissed the suit. But the lower Appellate Court reversed the decree passed by the Trial Court and passed a preliminary decree for partition allotting 1/6 share to the plaintiffs. The lower appellate court also held that Ext. BI 0 assignment deed is valid as against the share of the assignors but will not be binding as against the share of plaintiffs and defendants 6 to 8. Hence this Second Appeal by defendants 1 to 5. THE FACTUAL SETTING

(2.) ONE Anna who died on 30. 9. 1957 had two sons by name Vareed and Joseph. Vareed died on 12. 12. 1935 and Joseph died on 8. 11. 1985. The wife of Vareed was one rosa and the wife of Joseph was one Mariyakutty. Vareed had two sons by name Mathai and George @ Vareed. The said Mathai died on 18. 11. 1988 and George @ Vareed died on 27. 12. 1994. The first plaintiff is the widow of Mathai and plaintiffs 2 to 5 are his children. 6th defendant is the widow of George @ Vareed and defendants 7 and 8 are his children. Joseph the son of Anna had a son by name George who died on 15-4-1985. Defendants 1 to 5 are the children of the said George. Goerge had two sisters by name Elizabeth and mary.

(3.) THE following is the geneology showing the relationship between the parties and their predecessors:- <IMG>np_(1)_265_kerlt1_2009.jpg</IMG> Plaint A schedule property admeasuring 29 cents, the plaint B schedule property admeasuring 24 cents and another property admeasuring 26 cents all situated in Cheranellur village of Ernakulam District were acquired by Anna and her two sons Vareed and Joseph as per Exts. A1, A2 and B6 registered documents respectively all of the year 1109 M. E. corresponding to the year 1934. On 17. 12. 1124 M. E. corresponding to the year 1949 anna and her son Joseph executed a registered document (Ext. B9) possessorily mortgaging the plaint A and B schedule properties to one Ouseppunni. This document executed in the year 1949 contains the following recital:- <IMG>np_(2)_265_kerlt1_2009.jpg</IMG> [mathai and minor George who are the children of Vareed and their mother Rosa have been given in partition the 26 cents of property comprised in Survey No. 642/5 and those persons have no right over the properties scheduled hereunder or any other items and the mortgagee is given this assurance by the executants]. The first attestor to this usufractory mortgage deed is Mathai the then surviving major son of Vareed (S/o. Anna) who had already died in the year 1935. On the same day i. e. on 17-12-1124 M. E. Anna and Joseph executed a registered release deed releasing their rights over the 26 cents of land to Mathai and his minor brother George @ Vareed who were the children of Anna's son Vareed. Ousepunni the mortgagee under Ext. B9 is a witness to ext. A3 release deed under which a consideration of Rs. 200/- was paid to the executees. Thereafter Anna and her son Joseph assigned their equity of redemption over the plaint A and B schedule properties to George, S/o. Joseph authorising him to redeem Ext. B9 mortgage and pay a sum of Rs. 4007- to his sister Elizabeth. Subsequently, as per Exts. B11 and B12 registered documents dated 27. 11. 1958 and 7. 5. 1974 George the assignee under Ext. B10 redeemed Ext. B9 mortgage. As evidenced by Ext. B13 receipt George paid Rs. 400 to Elizabeth, his sister. As per Ext. B3 assignment deed dated 28. 12. 1958, George sold 12 cents out of the plaint schedule properties to one Annamma who is in possession of the same. As per ext. B2 assignment deed dated 18. 10. 1985 George had sold 3. 060 cents of property from the plaint schedule properties to one Surendran who put up a building there and is residing there. Ext. B15 evidences that George had effected mutation of the registers in his name with regard to the balance extent of the plaint schedule properties. Exts. B18 to B26 evidence payment of land revenue by George. The suit was filed in the year 2001 by the legal heirs of Mathai seeking 1/4th share over the plaint A and B schedule properties after setting aside ext. B10 assignment deed dated 28-5-1953.