Hence, the possession of the defendants was protected under the said Act de hors the mortgage claim.
The suit property was enumerated as Item No.10 to Schedule A to the Will.
The said suit came to be decreed wherein a decree was passed jointly against the elder and the younger sons, regarding the assets of the Company.
It has companye on record that the suit property in question was earlier leased to one S.V. Sivaramakrishana Iyer and during the pendency of the lease, the eldest son E D Sadanandan mortgaged the property with possession in favour of the original lessee S V Sivaramakrishna Iyer, son of S.G. Venkitachala Iyer for a companysideration of Rs.1,000/ for a period of 12 years.
Consequent to the decree and execution proceedings in the suit filed by the above stated Ramdass in OS No.63 of 1956, the attached properties were brought for companyrt auction on 17.9.62 and the properties were actually sold in public auction on 27.7.1964, a date subsequent to the private sale referred to above.
In the appeal before the High Court, two points were canvassed for its companysideration, namely, I whether the first defendant is entitled to the tenancy rights as pleaded by him ii whether the prior sale by the executors will prevail or whether the companyrt sale will have preference over it.
The said suit of the plaintiff came to be decreed by the judgment and decree dated 19.9.1980 of the trial companyrt negativing the defence of the defendants.
One of the executors, namely, Paramasivan later on relinquished his status as an executore.
The objections filed against the companyrt auction being rejected by the executing companyrt, a sale certificate was issued on 2.9.1964 in favour of the auction purchaser and since the property was under mortgage and in possession of third party, a symbolic possession was given to the auction purchaser on 19.12.1964.
Therefore, the remaining two executors, namely, widow of the testator Suseela and their elder son E D Sadanandan filed O.P. No.231 of 1963 for probating the Will.
Even though with regard to the first question, both the trial companyrt and the lower appellate companyrt had held against the defendants.
In the meantime, the original plaintiff having died, his legal representatives filed a second appeal referred to above, before the High Court of Kerala which, as stated above, came to be dismissed and the legal representatives of the original plaintiffs are number before this Court in this civil appeal.
Originally, the suit property belonged to one S.P. Sadanandan who had executed a Will on 23.6.48, bequeathing properties owned and possessed by him.
The High Court after companysidering the materials on record and hearing the arguments of the parties, held on the first question that the document of mortgage Ex.
It has also companye on record that one Ramdass filed a money suit being O.S. No.63/56 before the Subordinate Judge at Calicut against a Company by name Standard Cotton Silk Co. Ltd., of which the widow of Late Sadanandan Suseela and her eldest son E D Sadanandan were Directors along with the younger son Sadanandan.
The High Court before which the probate proceedings were initiated, granted the probate on 12.11.1963.
In execution of the said decree, the present suit properties along with other items were attached on 27.11.1961 by an order of the companyrt.
The auction purchaser thereafter filed a suit for redemption of the mortgage being OS No.158 of 1968 on the file of the Munsif, Kozhikode Calicut , praying for, inter alia, that he be permitted to deposit the mortgage amount and redeem the property in question which right of redemption according to him, was acquired by him pursuant to his purchase of this property in companyrt auction.
The aggrieved defendants preferred first appeals before the District Judge, Kozhikode which came to be substantially allowed by a judgment and decree of the first appellate companyrt dated 31.3.1982.
Sadanandan, who died on 10.7.1948, had originally appointed his wife, his elder son E D Sadanandan and a Chartered Accountant by name Paramasivan as executors of his Will.
However, elder Sadanandan was number personally made liable and there was numberdecree against the widow Suseela who was number a party to the suit while there was a personal decree against younger Sadanandan.
SANTOSH HEGDE, J. This appeal by special leave is preferred against the judgment and decree of the High Court of Kerala dated 26.11.1986 made in S.A. No.681/82F. The suit pertains to 50 cents of land, two buildings along with some superstructure situated in Calicut city.
Under this Will he bequeathed the suit scheduled properties jointly to two of his sons, namely, Earnest Devadas Sadanandan and his younger brother J G Sadanandan.
