MARIYAPUSHPAM Vs. MATHIAS

JUDGEMENT

(1.) S.A.No.1307 of 1990 has been preferred from the judgment and decree of the learned subordinate Judge, Kuzhithurai made in A.S.No.284 of 1983 dated 4.4.1990 modifying the judgment and decree of the learned Principal District Munsif, Kuzhithurai, made in O.S.No.447 of 1974 dated 13.8.1983 while S.A.No.1308 of 1990 has arisen from the judgment and decree of the learned Subordinate Judge, Kuzhithurai made in A.S.No.285 of 1983 dated 4.4.1990 modifying the judgment and decree of the learned Principal District Munsif, Kuzhithurai made in O.S.No.267 of 1974 dated 13.8.1983.

(2.) THE first respondent herein and one Sesadima filed a suit in O.S.No.447 of 1974 for partition, charge of mortgage security or in the alternative, a decree for mortgage money with the following averments. THE suit property belonged to Madamma Kochappi of Vallavila Puthuval Puthen house. She died issueless in or about 1961. She had three sisters viz. Perumal, Lekshmi and Kaliamma and two brothers viz. Pandaram and Velu. THE first defendant one of the sisters was entitled to 1/5th share in the suit property. Perumal and Lekshmi died leaving five children each. Defendants 2, 3 and 16 to 18 were the children of Perumal while defendants 9 to 12 and 19 were the children of Lekshmi. Each branch was entitled to 1/5th share. THE two brothers were also dead. THE 4th defendant was the widow of Pandaram while defendants 5 to 8 were his children. Defendants 13 and 14 were respectively the wife and son of Velu. Defendants 4 to 8 were together entitled to 1/5th share. THE 15th defendant was the subsequent encumbrancer under the first defendant. Madamma Kochappi mortgaged 10 bearing coconut trees and 20 cents of land in the suit property for a (2002) 1 MLJ 95 at 96 sum of Rs.1,000 in the year 1960 to Vasthian Stanislaus and others. One Ananthayyan who got assignment of the said mortgage in the year 1963 assigned the same on 3.8.1964 in favour of one Meenakshi and from the latter, the first plaintiff got an assignment on 15.12.1971. She executed another mortgage for a sum of Rs.120 in the year 1961 in favour of one Varaveedu Arulappan in respect of 13 bearing coconut trees and 13 cents of land in the suit property. THE first plaintiff was in possession of 23 coconut trees and 33 cents of land in the suit property, after the said Meenakshi who got an assignment of the above mortgage in 1964, assigned the same in favour of the first plaintiff. THE 18th defendant sold 10 cents of land and 15 coconut trees in the suit property on 21.1.1967 to one Seshayyan, who sold it on 14.2.1967 to the 20th defendant husband of the 17th defendant. THE defendants 17 and 20 jointly executed a sale deed for 12 cents of land in favour of Mariadasan and the latter sold the same to the first plaintiff on 4.2.1972. THE defendants 13 and 14 sold 10 cents on 13.9.1969 to Joseph, who in turn sold the same to the first plaintiff on 4.2.1972. THE sale by Mariadasan and Joseph was in one sale deed and the said portion of 22 cents was described as the eastern portion. A portion of 12 cents on the west was purchased by the plaintiffs 1 and 2 from the defendants 16 and 19 on 28.3.1974. Thus the plaintiffs 1 and 2 were entitled to 34 cents in the suit property. THE suit property was measuring 1 acre and 52 cents as per the settlement. THE plaintiffs were liable to pay a sum of Rs.492.10 for their 34/152 share in the suit property towards the mortgage money secured in the suit property towards the mortgage money secured under the mortgages executed by Madamma Kochappi. THE balance of Rs.1,707.90 was to be paid by the defendants and the same was a charge upon the share of the defendants and the plaintiffs have the right to enforce the same. Hence, the suit might be decreed.

(3.) THE 23rd defendant filed a written statement (2002) 1 MLJ 95 at 97 contending that he was entitled to 51.167 cents in the suit property by virtue of the purchase from D-1 on 7.2.1976 and he was entitled for partition of the same. THE tile if any of others was lost by adverse possession.