ARNLAYI NADACHI Vs. JAGADEESIAH NADAR

JUDGEMENT

(1.) THIS second appeal arises out of a suit instituted for redemption and partition. The claim is now1 concerned only with regard to the title to item No. 1 of the properties set out in the plaint, namely, S. No. 8603, originally Lakkom 332, covering an extent of 1-47 acres.

(2.) DEFENDANTS 3 and 6 are the appellants. For a proper appreciation of the question involved in this appeal it will be necessary to advert briefly to the tangled history of the various transactions with respect to the property which originally belonged to one Gunamudayan. He had two wives. By the first wife he had a son, aseervatham. By his second wife, who was named Nakshathram, he had two sons, the elder of whom died before the Travancore Christian Succession Act came into force and whose rights devolved on his death on his younger brother Yovan alias john, whom we shall hereafter refer to as John. (Sr. ). His son, John (Jr.) was the first plaintiff in the suit, -the second plaintiff being an allenee from him.

(3.) THE property now in dispute was mortgaged alone with certain other properties in the year 1899 by Gunamudayan to his daughter-in-law, that is. the wife of aseervatham. After the mortgagor's death, there was a partition suit in the family and by the appellate decree of the Travancore High Court passed in 1917 each one of his heirs, namely, Aseervatham, Nakshatram and John (Sr.) became entitled to a one-third share of the properties covered by the decree, item 1, in the present suit being one of them. John (Sr.) was evidently treating his mother's share as his own. He created a number of mortgages over the two thirds share of the property (which was merely an equity of redemption, as the same was subject to a mortgage in favour of Aseervatham's wife ). Alagappa, one of the creditors who obtained a mortgage from John (Sr.), filed a suit on his mortgage, obtained a decree and purchased the suit property in Court auction in 1925. He also obtained symbolical delivery of possession. Another mortgagee, Shanmugham, took similar proceedings and purchased in the year 1936 the two-thirds share mortgaged to him. There was also delivery of symbolical possession in his case. The former purchaser, that is, Alagappa, then instituted a suit for redemption of the other created by Gunamudayan in the year 1899. After obtaining redemption, he took possession of the property redeemed, in The year 1942. Both Alagappa and Shanmugham sold their interest in the suit property to the sixth defendant, the former giving possession on the property as well. That was in the year 1948. In the meantime events Happened in the family of the mortgagor. In the year 1940 Nakshathram, who had a third share in the property died. She was succeeded by her son John (Sr.) in regard to that portion of the property which even during her life-time he had included in the mortgages which he executed in favour of Alagappa and' Shanmuga. John (Sr.) died in 1954 leaving behind him John (Jr.) and another son who had been impleaded as the fourth defendant to the suit. It will be seen from the above statement of facts that at the time when John (Sr.)created the mortgages in favour of Allagappa and Shanmugham over the two-third share of the suit property, he actually had right to the extent of only a one-third share therein, the other third share belonging to his mother Nakshatram. This was the position even when the Court sales and delivery in pursuance thereof took place. Later John (Sr.) succeeded to his mother's one-third share. That was in the year 1940, long after the Court sales in execution of the decrees obtained by the mortgagees, Alagappa and Shanmugham. In the ordinary course that property which John (Sr.) Obtained as heir to his mother must have been inherited by his own sons John (Jr.) and the fourth defendant.