MUTTILLATH VALAPPIL VELLACHI Vs. MADHAVI

JUDGEMENT

(1.) Defendants 3 to 7 and 9 in a suit for partition are the appellants in this second appeal.

(2.) The following is the case set out by the plaintiffs in the plaint: The suit property measuring 40 cents belonged in jenm to one Moolacheri tarwad and the same was outstanding on Ext. A1 mortgage created on 21.7.1888 in favour of one Kodoth tarwad. Though Ext. A1 was a usufructuary mortgage, it was alleged by the plaintiffs that there was a lease back arrangement with the mortgagee and Moolacheri tarwad was consequently retaining possession of the suit property. While so, the Karanavans of Moolacheri tarwad executed Ext. A2 superior mortgage in respect of the suit property in favour of one Kannankunhi on 1.11.1895. Kannankunhi later assigned his rights under Ext. A2 mortgage in favour of his six children, namely, Unda, Kumba, Ambu, Vellachi, Kunhikannan and Pakkeeran. Ext. A4 is the assignment deed executed by Kannankunhi in this connection on 29.11.1907. Unda and Kumba died thereafter unmarried and issueless. The remaining children of Kannankunhi later created a further mortgage in respect of the suit property in favour of Kodoth tarwad on 7.5.1929. Ext. A6 is the deed of the said mortgage. It is alleged by the plaintiffs that there was a lease back arrangement at the time of execution of Ext. A6 usufructuary mortgage also and consequently, the mortgagors continued to be in possession of the suit property. It is also alleged by the plaintiffs that thereafter, one among the remaining children of Kannankunhi namely Ambu also died unmarried and issueless. As Unda, Kumba and Ambu died unmarried and issueless, it is the case of the plaintiffs that the rights of the said persons over the suit property devolved on the remaining children of Kannankunhi namely, Vellachi, Kunhikannan and Pakkeeran. The plaintiffs in the suit are the successors of Vellachi. Pakkeeran is the first defendant in the suit. Defendants 2 to 9 are the successors of Kunhikannan. It is also alleged by the plaintiffs that the first defendant has transferred his rights in the suit property in favour of his children. The children of the first defendant in whose favour the first defendant has executed documents in respect of the suit property are defendants 10 and 11. According to the plaintiffs, the suit property is in the joint possession of the plaintiffs and defendants and the plaintiffs are entitled to one third share therein.

(3.) Defendants 1, 10 and 11 filed a joint written statement. The stand taken by them in the written statement is that the suit property is not one included in Exts. A2, A4 and A6 documents. It was contended by them that Ext. A6 was a sham document, not acted upon. According to the said defendants, the predecessors of the plaintiffs and defendants 2 to 9 namely, Vellachi and Kunhikannan have no rights in the suit property and the same belonged exclusively to Pakkeeran as obtained by him on an oral lease arrangement from Madiyan Koolom Kshethrapalaka Devaswom. It was also contended by them that the first defendant has obtained purchase certificate in respect of the suit property on the above basis under the Kerala Land Reforms Act. Alternatively, it was contended by the said defendants that even if it is found that the plaintiffs or defendants 2 to 9 have any rights in the suit property, the same is lost by their adverse possession.