C RADHAKRISHNAN Vs. B VALLIAMMA PILLAI

JUDGEMENT

(1.) The plaintiff in O.S.No.346/82 on the file of the Additional District Munsif, Padmanabhapuram, is the appellant in the second appeal. The suit is for partition.

(2.) The plaintiff's case was as follows: The suit properties originally belonged to Bhavathy Amma. On her death, they devolved on her two daughters Valliamma and Ananchi Pillai. Valliamma, the first defendant in the suit, and her sister the said Ananchi Pillai became entitled to one half share in each of the suit properties. Their brother Ramaswamy Pillai was looking after the suit properties. Taking advantage of this position, Ramaswamy Pillai fraudulently created a mortgage in 1099 M.E.in respect of the suit properties behind the back of his sisters. The above mortgage was assigned in favour of one Mohammed Abdul Rahman Alim Sahib and he got possession. Ramaswamy Pillai executed another mortgage in favour of Abdul Rahman Alim Sahib giving credit to and extinguishing the 1099 M.E.mortgage and receiving additional amount. On coming to know about these transactions, the first defendant Valliamma filed a suit against Ramaswamy Pillai and his mortgagee, also impleading Ananchi Pillai as one of the defendants for declaration of title and for recovery of possession of the suit properties with mesne profits in O.S.No.158 of 1119 M.E.in the District Court, Nagercoil. That suit was dismissed by the trial Court. The first defendant preferred an appeal before the Travancore Cochin High Court as A.S.No.94 of 1950. The High Court revised the decree of the trial Court on 9-3-1954 and found that the plaintiff and the second defendant in the suit, viz. Valliamma, the present first defendant, and Ananchi Pillai were entitled to the suit properties in equal shares. But, at the same time, the Court found that they were liable to pay the mortgage amount covered by the 1099 M.E.mortgage before getting recovery of possession of the suit properties from the mortgagee, the third defendant in the suit. The Court also found that the 1119 mortgage given by Ramaswamy Pillai was invalid and not binding on the sisters and they were allowed to recover mesne profits also from the persons in possession. The suit was remanded to the trial Court for ascertaining the amount payable under the 1119 M.E.mortgage as a condition for recovery of possession of the suit properties and also for mesne profits. The trial Court passed a decree on 10-3-1955 allowing recovery of suit properties on deposit of Rs.3675.65 and also allowing mesne profits and costs. The plaintiff in that suit deposited the amount as directed and got delivery of the suit properties on 17-12-1955. Ananchi Pillai, who was entitled to one half of the suit properties in the above suit, gifted the properties to the three daughters of her brother Ramaswamy Pillai under a gift deed dated 12-3-1954. Under the gift deed Bhagavathy Amma, daughter of Kaliamma, the mother of the plaintiff, became entitled to 1/3 of ˝, ie. 1/6th share in the properties. Defendants 2 and 3, who are sisters of Bhagavathy Amma became entitled to 1/6 share each. After the death of Bhagavathy Amma, her husband Chellappan Pillai and their children including the plaintiff effected a registered partition on 30-10-1980 in which the plaintiff was given 1/6th share in the suit properties as B Schedule items 9 and 10 along with other properties. Thus the plaintiff is entitled to 1/6th share in the suit properties. It is known that the first defendant in the present suit gave away her one half share to the fourth defendant reserving some interest for her. Thus defendants 1 and 4 are together entitled to one half share in the suit properties. There was no partition by metes and bounds for the suit properties among its co-sharers. The plaintiff and defendants 2 and 3 as successors in interest in Ananchi Pillai for her one half share, are liable to pay one half of the amount paid by the first defendant Valliamma as per the decree in A.S.No.94 of 1950 for recovery of suit properties and also the one half of the expenses of the litigation. In turn, the plaintiff and defendants 2 and 3 are entitled to realise one half of the mesne profits, if any, recovered by Valliamma, the first defendant in that suit. These accounts are to be settled only at the time of partition. Hence the suit.

(3.) The second and the third defendants supported the case of the plaintiff and sought passing of preliminary decree in their favour and also for 1/6th share in the suit properties.