MADHAVI Vs. KESAVA PANICKER

JUDGEMENT

(1.) In this appeal, on behalf of the plaintiff - appellant who has lost in both the subordinate courts, Mr. M. P. Varghese, her learned counsel, contends that the approach made by both the subordinate courts is wrong in law. A few facts may be stated to appreciate the contentions of the learned counsel for the appellant and also of the respondent, Mr. T. S. Krishnamurthi Iyer. The plaintiff and defendants 3 and 4 are children of the second defendant. The suit was for partition and separate possession of the plaintiff's 1/9th share in the suit properties on the ground that the plaintiff and defendants 1 to 8 are members of an undivided marumakkathayam family. The plaintiff wanted also an 1/9th share to be allotted absolute ignoring certain liabilities incurred by defendants 1 and 2 regarding at any rate item No. 1. The subject matter of the litigation comprised of four items.

(2.) In this second appeal, I am not concerned with items 2 to 4, because the plaintiff's right to have a partition of those items has been recognised and the only controversy is, as to whether the dismissal of the plaintiff's suit by both the subordinate courts negativing her right to get partition in item No. 1, is correct or not.

(3.) The 9th defendant, who is now in possession of item No. 1 was the chief contesting defendant regarding this item. On 29-5-1100 defendants 1 and 2 executed a mortgage over item No. 1 evidenced by Ext. C in favour of one Lakshmi Amma. In view of default committed by defendants 1 and 2 in respect of the payment of the mortgage amount the mortgagee appears to have instituted O. S. No. 1038 of 1106, the plaint being Ext. I. The suit ultimately resulted in a decree evidenced by Ext. X dated 25-1-1107. The properties were sold in court auction in 1114, and ultimately it is also seen by Ext. IV that on 18-3-1117 Lakshmi Amma, the mortgagee obtained delivery of this item.