KOMBI ACHAN Vs. K C VELAYUDHAN

JUDGEMENT

(1.) This is an appeal by defendants 1, 26 and 27 against the Judgment and decree in O. S. No. 9 of 1947 on the file of the Court of the Subordinate Judge, Palghat. The properties, which are the subject-matter of this litigation, consist of 63 items of land. Items 1 to 41 belong in jenmi to Thiruvara Devaswom & they are subject to a kanom for Rs. 2600 in favour of Vedakke Meledom, of which defendants 1 to 25 are the members. Items 42 to 63 belong in jenm to Kavalappara Estate and they are subject to a kanom for Rs. 395 in favour of the same Edam. Defendant 1, who was originally the karnavan of this Edam, was removed from management by a decree passed in O. S. No. 35 of 1917 on the file of the Court of the District Munsif of Alathur. That decree also provided that defendant 1 should get annually 300 paras of paddy for his maintenance. Defendant 2, who succeeded to the management, was also removed by a decree passed in O. S. No. 14 of 1925 on the file of the Court of the District Munsif, Alathur, and defendants 3 and 12 became the managers. On 1-11-1927 all the members of the Edam excluding defendants 1 and 2 executed a usufructuary mortgage of their rights over the suit properties in favour of plaintiff l for a sum of Rs. 7350 (Ex. A-2). Out of this sum, Rs. 621-13-9 was paid to the mortgagors for discharge of two debts and the balance of Rs. 6728-2-3 was reserved with the mortgagee for discharge of eight debts, which are set out in the deed. On 24-7-1929, there was a further usufructuary mortgage over the suit properties in favour of plaintiff l by all the members of the Edam excepting defendants 1 and 2 for a sum of Rs. 4450. This deed provided 'inter alia' that the mortgagee should pay 300 paras of paddy to defendant 1 as provided in the decree in O. S. No. 35 of 1917; 305 paras of paddy to the Edam and appropriate the balance towards the Government revenue, michavaram and the interest. In pursuance of these two deeds, plaintiff 1 got into possession of the suit properties and discharged all the debts mentioned in Ex. A-2 except a mortgage debt of the year 1921 in favour of one Kunhiraman Nayar for a sum of Rs. 1225. Kunhiraman Nayar filed O. S. No. 79 of 1933 on the file of the District Munsif's Court, Alathur, for recovering the amount due under his mortgage and obtained a decree. One Ramaswami Iyer obtained an as signment of this decree and in execution thereof brought the suit properties to sale. Plaintiff 1 became the purchaser in court auction held on 19-12-1934 for a sum of Rs. 5120 and the sale was confirmed on 21-1-1935 (Vide Sale certificate Ex. A-4). After payment of the amount due under the decree in O. S. No. 79 of 1933, there was a balance of Rs. 3284-13-10 and that was drawn by plaintiff 1 and appropriated towards the amount due under Ex. A-2.

(2.) After the sale, plaintiff l took up the position that by reason of the purchase on 19-12-1934 the mortgages dated 1-11-1927 and 24-7-1929 had become extinguished and that he became the absolute owner of the kanom rights of the Edam free from the two mortgages aforesaid. In that view, he declined to deliver the paddy either to defendant l or to the Edam as provided in the mortgage dated 24-7-1929. Defendant l then applied to execute the decree in O. S. No. 35 of 1917 on the file of the District Munsif's Court, Alathur, and attached the purappad payable by plaintiff l under the mortgage deed, got himself appointed receiver for collecting the same and as Receiver filed O. S. No. 90 of 1943 in the District Munsif's Court, Alathur, for recovery of 2400 paras of paddy being the maintenance payable for 8 years from 1935 to 1943. Plaintiff 1 contested the suit on the ground that by reason of his purchase on 19-12-1934 the mortgages had become extinguished and that therefore he was released from the obligations contained in the mortgage deeds including the liability to pay 300 paras of paddy to defendant l. This contention was overruled and the suit decreed on 10-4-1944. This decision was affirmed on appeal by the Subordinate Judge of Faighat in A. S. 89 of 1944 and toy this court in S. A. No. 1045 of 1945 (Vide the judgment reported in -- 'Kannan v. Kombi Achan', AIR 1947 Mad 209 (A) ). It was therein held that as plaintiff l was under an obligation to discharge the mortgage in favour of Kunhiraman Nayar and as the suit and the execution sale resulted from the breach of this obligation by him his purchase enured for the benefit of the mortgagors under Section 90, Trusts Act and that he could not rely on that sale in bar of the rights of the Edam under the mortgages and that his position was only that of a mortgagee under the mortgages dated 1-11-1927 and 24-7-1929.

(3.) Subsequent to this decision, defendant 26 obtained an assignment of the purappad due to defendant 12 and filed O. S. No. 303 of 1946 in the District Munsif's Court, Alathur, for recovery of the same; defendant 27 obtained an assignment of the purappad due to defendant 4 and filed O. S. No. 53 of 1947 in the same Court for recovery of the same. Defendant 14 filed O, S. No. 267 of 1946 in the same Court for partition of the Edam properties. The present plaintiff 1 was impleaded as defendant in all these actions. On 10-2-1947, plaintiff 1 instituted O. S. No. 9 of 1947 in the Court of the Subordinate Judge, palghat, out of which this present appeal arises, for a declaration that by reason of his purchase on 19-121934 he had become the full owner of the kanom rights belonging to the Edam of defendants 1 to 25 and that the mortgages dated 1-11-1927 and 24-7-1929 had become extinguished and the defendants could claim no rights thereunder. It was also alleged that the decree in O. S. No. 90 of 1943, which was affirmed in A. S. No. 89 Of 1944 and S. A. No. 1045 of 1945 was "not sustainable either in law or equity". The suit wft3 resisted on two grounds. Firstly, it was pleaded that the purchase made by plaintiff 1 on 19-12-1934 was vitiated by fraud and collusion in that he deliberately made default in the payment of the amount due to Kunhiraman Nayar and instigated him to file O. S. No. 79 of 1933 in the District Munsif's Court, Alathur, obtained an assignment of the decree passed therein in the name of Bamaswami Aiyar benami for himself and purchased the properties in court auction with the set purpose of evading his obligations under the mortgage deeds and that in consequence the sale could not be relied on as extinguishing the mortgages. Secondly it was contended that the suit was barred as 'res judicata' by reason of the decision in O. S. No. 90 of 1943 on the file of the District Munsif's Court, Alatnur, A. S. No. 89 of 1944 on the file of the Subordinate Judge's Court, Palghat and S. A. No. 1045 of 1945 on the file of the High Court, Madras. Plaintiff 1 died pending the suit and plaintiff 2, who had obtained an assignment of the rights of plaintiff 1 was brought on record as his representative.