KRISHNAN Vs. SUBHASHINI

JUDGEMENT

(1.) 1. Plaintiffs 2 to 4 in O.S.No.499 of 1984 on the file of the Principal District Munsif, Kuzhithurai, are the appellants in the second appeal. The suit filed by them and their mother Valliamma for redemption of a mortgage was dismissed by the trial Court and this decision was confirmed in the appeal A.S.No.53 of 1996 filed by them before the learned Subordinate Judge, Kuzhithurai, on 30.4.1998.

(2.) THE facts leading to the present proceedings may be stated as follows: THE first plaintiff Valliamma in the present proceedings and one Chellappan Pillai were sister and brother. Plaintiffs 2 to 4 are the children of the first plaintiff. THE first defendant is the wife of one Kuttan Panicker. THE second defendant is the daughter while the third defendant is the daughter'shusband. On 22.1.1968 under Ex.A-1 Valliamma created an othi in favour of the first defendant. THE extent was 2 cents. THE description of the property as set out in the plaint is as follows: "Kadavilagom Purayidom bearing S.No.629 measuring 5 acres 87 cents in the northern portion of 3 acres 2 cents. East of the property in the possession of Kuttan Panicker. South of the property mortgaged (othi) to C.Sathyabhama. West of the plaintiff'shouse. North of Vellachipara Road." On 2.5.1968 under Ex.B-17 Valliamma'sbrother Chellappan Pillai executed a sale deed in favour of Kuttan Panicker in respect of 10 cents in S.No.629. Under Ex.B-1 on 17.4.1969 after the mortgage by Valliamma in favour of the first defendant; Kuttan Panicker executed a gift deed in favour of defendants 2 and 3. THE area subject matter of gift is an extent of 8 cents and it is specifically mentioned in Ex.D-1 that out of the 10 cents purchased by him under Ex.B-17 Kuttan Panicker reserved an extent of 2 c ents for himself and the balance of 8 cents was being gifted. In 1971 Kuttan Panicker filed a suit O.S.No.854 of 1971 before the District Munsif'sCourt, Kuzhithurai, on the basis of Ex.B-17 against the first plaintiff herein (Valliamma) and six others of whom Kuttan Panicker'svendor Chellappan Pillai was the fourth defendant and his wife Subashini, the first defendant in the present suit, was the seventh defendant. THE suit was for demarcation of the property covered by the sale deed Ex.B-17. THE present first defendant Subashini filed a written statement in her capacity as the seventh defendant in the other suit stating that she had taken a mortgage from Valliamma over 2 cents of lands just adjacent to and east of the 10 cents belonging to the plaintiff therein, viz. Kuttan Panicker under Document No.2267 of 1968 dated 22.7.1968 (the present Ex.A-1), that she was in possession of the same and that the said 2 cents could be demarcated on land. THE suit was dismissed by the learned District Munsif on 31.7.1974 holding that the sale deed in favour of Kuttan Panicker (Ex.B-17 in the present suit) was invalid as the vendor Chellappan Pillai has no right to execute the sale deed, he being one among several members of a joint family, to which the property belonged. THEre was an appeal in A.S.No.244 of 1976 and the appellant, viz. Kuttan Panicker having endorsed on the appeal memo that the appeal was not pressed and that it was settled out of Court, the appeal was dismissed by the learned Subordinate Judge, Nagercoil, on 28.3.1977 as settled out of Court and as not pressed. THEreafter, the present suit came to be filed as already stated for redemption of the mortgage executed by the first plaintiff Valliamma in favour of the first defendant Subhashini, wife of Kuttan Panicker.

(3.) NOTICE of motion was ordered and after notice the respondents appeared through Counsel. It should be pointed out that the same Counsel Mr. Sreekumaran Nair represented all the respondents.