ESAKKI PALPU Vs. CHERIAN KOCHAN

JUDGEMENT

(1.) THE appellants in this Letters Patent Appeal are the plaintiffs in O.S. 349 of 1956 on the file of the District Munsif Court, Kuzhithurai. They filed that suit for declaration of their title to S. No. 293 which is the northern half of Naduvalaporayidom in Lekkom 455, the total extent of which is said to be 4 acres 29 cents. Their case was that the entire lekkom 455 originally belonged to Chemban Mallan and Raman Narayanan. In the settlement the northern half belonging to Chemban Mallan became S. No. 293 and the southern half belonging to Raman Narayanan became S. No. 294. The appellants alleged that Chemban Mallan executed a vellola mortgage or othi over S. No. 293 in favour of one Devi Badrakali for fanams 253. Devi Badrakali assigned that mortgage in favour of one Boothathan Poonan Perumal, the ancestor of Padmanabhan Ooli and Ponnan Cherian. Padmanabhan Ooli and Ponnan Cherian were in possesion of S. No. 293. Chemban Mallan executed a chora othi, which is an irredeemable mortgage amounting to a sale, in respect of S. No. 293 in favour of one Esaki Padmanabhan on 22 -11 -1050 M. E. and conveyed the Jenmom right in the land. Esakki Padmanabhan died leaving behind three sons, Esakki, Ummini and Marthandam. The first appellant is the son of Esakki and father of appellants 2 and 3. The 4th appellant is the son of Ummini. Appellants 5 and 6 are the sons of Marthandan. The first respondent and the second respondent's father are the sons of Ponnan Cherian. Padmanabhan Ooli's half share in the mortgage right had been gifted to his sons under a gift deed and has devolved upon his grand sons, respondents 3 and 4. Respondents 1 to 4 were in possession of S. No. 293. Respondents 5 and 6 are the legal representatives of the first respondent. Respondents 7 and 8 are the legal representatives of the second respondent. The appellants expressed their willingness to deposit Rs. 36.94 said to be due under the othi and Rs. 7 on account of improvements effected to the property.

(2.) THE second respondent denied that there was any mortgage in favour of Devi Badrakali and contended that one Maya Konda Narayanan executed a mortgage and kuzhikanam in favour of one Ponnan Perumal for fanams 1100 on 11 -8 -1131 M. E. The extent of S. No. 293 is 2 acres 2 cents. After the death of Ponnan Perumal his sons Padmanabhan Ooli and Ponnan Cherian came into possession and after them, their legal representatives, respondents 1 to 4 were in possession. Esaki Padmanabhan had no jenmam right in the property and O.S. 280 of 1957 M. E. filed by him against Padmanabhan Ooli and Ponnan Cherian on the basis of a chora othi has been dismissed.

(3.) A few days later, Ponnan Perumal Cheriyan made a statement on 6 -4 -1069 M. E. He stated -