E JEEVADHAS Vs. E BABU

JUDGEMENT

(1.) BOTH these second appeals arise out of the same suit in O.S.No.392 of 1973 on the file of Additional District Munsif, Kuzhithurai. In S.A.No.2226 of 1983 the appellants are defendants 5 and 6, and in S.A.No.59 of 1984, the appellants are defendants 1 and 2. The description of parties will be according to their rank in the suit.

(2.) PLAINTIFFS two in number filed the suit for declaration of their title and possession and also for partition. The plaint schedule properties are three in number. Item No. 1 is northern-most 1 acre, 32 cents, which is l/3rd of the total extent in S.No.4666 of Mehtukummal Village. Item No.2 is another l/3rd in S.No.4667, in the northern 50 cents. Item No.3 is the eastern-most 96 cents, which is l/3rd portion of S.No.4668. All these properties originally belonged to one Mallan Neelakantan's family by name Pilloor house. From that family a mortgage was executed in favour of one Padmanabhan Thaveethu as per Ex.A-1 dated 4.1.1064 M.E. The mortgagee left his five sons to inherit his right over the said property and they are Poulu, Menuel, Manas, Nallathampi and Arumanayakam, each having l/5th share in the property. It is the further case of the plaintiffs that two of the mortgagees viz. Nallathampi and Arumanyakam, who had 2/5th share in the mortgage right executed a mortgage in respect of their share in favour of one Madan Isaac and Yovan Simpson as per Ex. A-2, dated 26.8.1101 M.E. Both these mortgagees came into possession and were enjoying the same. It is the further case of the plaintiffs that equity of redemption in respect of the plaint survey number properties was partitioned amount the jenmies in the year 1103 M.E and the plaint schedule properties were allotted to the branch of the 1st defendant. Even though there was partition, the possession was with the two mortgagees - Madam Isaac and Yovan Simpson. Out of the two mortgagees, one of them viz., Yovan Simpson assigned his one half right in favour of one Gnanabaranam in the year 1112 M.E., as evidenced by Ex.A-3, dated 21.10.1112 M.E, Gnanabaranam died and his right was inherited by his two daughters - Christal Bai and Saleelal. The one half which belonged to Madan Isaac under Ex.A-2 devolved on his only son Matheyee. It is said that the right of Nallathampi and Arumanayakam was never redeemed, and the mortgagees perfected title as the mortgage become barred. Christal Bai, Saleelal and Mathayi executed sale deeds in favour of the plaintiffs under Exs.A-4, A-5 and A-6 in this case. It is the case of the plaintiffs that on the basis of these documents, they are in possession of the scheduled properties, and the defendants are interfering with their possession. Since it is in respect of 2/5th share, they seek a decree for partition of their 2/5fh share in the suit items by metes and bounds and for separate possession.

(3.) IN S.A.No.2226 of 1983, the following substantial questions of law have been raised for consideration: