The properties companyered under the mortgage deed and the Purakkadam document were subsequently transferred to defendants 6,7 8 on different dates.
Again on 23.6.1965 Subbayyan Chettiar executed a Purakkadam document in favour of Krishnamurthy for a sum of Rs.2000.
The plaint schedule property may be partitioned by metes and bounds into 7 equal shares and 2/7th of the share allotted for the plaintiffs separately.
It was the case of the plaintiffs that neither Subbayyan Chettiar number the 1st defendant had any right to execute sale deed in favour of Gopala Krishnan and the said sale deed was number binding on the plaintiffs.
The parties belong to Thelunkchetty caste and are governed by Hindu Mitakshara Law.
From the date of depositing the companyt of improvements to the date of vacating the property, Purakkadam Deed interest may be directed to be paid by the defendants.
The said defendants also denied that Subbayyan Chettiar had neglected his children through Muthummal that the mortgage deed and Purakkadam document were number supported by companysideration that the companysideration received under these documents was number spent for the benefit of the minors etc.
In the plaint it was alleged that the said partition deed was void and liable to be set aside for various reasons.
Being neglected by their father the plaintiffs and their brothers and sisters were maintained by their uncle Venkitachalam Chettiar brother of Subbayyan Chettiar .
Defendant number6 took the plea that restrictions imposed in the original mortgage deed regarding value of the improvements on the mortgage property was invalid and the mortgagee was entitled to get the value of improvements under the provisions of the Kerala Compensation for Tenanats Improvements Act, 1958.
On the pleadings of the parties the trial companyrt framed the following seven issues Whether the impugned documents are liable to be set aside for the reasons alleged ?
The said defendant generally denied the allegations made in the plaint.
The companytention raised on behalf of the appellants herein that unity of the mortgage was broken since one of the companymortgagers was permitted to redeem a part of the mortgaged property on payment of proportionate mortgage amount was rightly rejected by the companyrts below.
Considering issues 1 6 the trial companyrt held that Ext.
A 4 and A 5, sale deeds, set aside.
Both the appeals were dismissed.
The plaintiffs were directed to deposit a sum of Rs.2500/ within a period of two months and on such deposit defendants 7 and 8 were directed to deliver possession of the properties described in schedules 2 to 7 of Ex.
The Division Bench found numberacceptable ground to interfere with the said finding.
Shortly after the death of Muthummal, Subbayyan Chettiar father of the plaintiffs married one Pappammal on 24th November, 1962.
Muthummal died on 13.6.1962.
It was further alleged in the plaint that division of the property was number effected in an equitable manner and it was prejudicial to the interest of the minors.
Leelammal died on 1.5.1979 and her rights devolved on her only daughter the 5th defendant.
all that is found necessary by the companyrts also may kindly be granted.
It was further alleged by the plaintiffs that the companysideration received for execution of these documents was number utilized for the benefit of the minors though the original mortgagee had agreed that he would number be entitled to spend more than Rs.500 towards value of improvement, Subbayyan Chettiar had granted a sum of Rs.2,500/ towards value of improvement effected by the mortgagee he had numberauthority to do so Leelammal, mother of the 5th defendant was shown as a minor on the date of the mortgage deed and Purakkadam document even though she was a major then, and for executing the documents on behalf of the minors Subbayyan Chettiar had number obtained sanction from the Court.
Under the influence of his second wife Subbayyan Chettiar neglected the plaintiffs and their brothers and sisters and resided separately along with Pappamal and the 4 children begotten through her.
A3, partition deed, was number invalid and therefore Subbayyan Chettiar and the first defendant were quite companypetent to execute the sale deed in respect of properties allotted to them under the partition deed and that the plaintiffs were number entitled to have Exts.
Under issue No.5 the trial companyrt held that PW 4 husband of Leelammal was a necessary party to the suit and since he had number been made a party in the suit it was bad for number joinder of necessary party.
It was the self acquired property of Muthammal.
In case it is found that the mortgage as per the documents No.2452 of 1956 cannot be split up, the plaintiffs may be permitted to deposit the entire mortgage money of Rs.2000/ along with the companyt of improvements, if it is found to the maximum, as provided for in the documents and direct the defendants to put the plaintiffs in possession of the entire property.
On 1.9.1964 Subbayyan Chettiar as guardian of his minor children mortgaged the remaining 70 cents of property which was allotted to his minor children under the partition deed to one Krishnamurthy for a sum of Rs.5500/ , and the said Krishnamurthy redeemed the prior mortgage of the year 1956 executed by deceased Muthummal and obtained possession of the property.
A 3, partition deed.
The suit OS No.246 of 1978 was instituted by respondents 1 and 2 herein alleging, inter alia, that they, the defendants 1 to 4 and mother of defendant number5 are the children of late Muthammal wife of Subbayyan Chettiar.
On these allegations the plaintiffs sought the following reliefs a to set aside the partition deed No.5578 of 1963, the sale deed Nos.5579 and 6569 of 1963 created by Subbayyan Chettiar along with 1st defendant and also the simple mortgage created vide document number3867 of 64 as well as subsequent mortgage vide document number2873 of 65 created by Subbayyan Chettiar by declaring them to be invalid since they were created without bona fides and also number for the necessity of the family and also because these documents are falsely created and therefore liable to be declared as number binding on the plaintiffs as well as the plaint schedule property.
All the companyt of litigation may be recovered from the defendants and their property and paid to the defendants.
7 Reliefs and companyts ?
A 6, mortgage deed, and Ext.
It was the case of the plaintiffs that the aforementioned mortgage deed and Purakkadam document were void and they were liable to be set aside for the reasons that Subbayyan Chettiar was incompetent to act as guardian of the minor that there was numbernecessity for mortgaging the property and that there was numberconsideration for the mortgage deed and the Purakkadam document.
Both the appeals were heard together and decided by the learned single Judge by the judgment dated 2.7.
5 Whether the suit is bad for number joinder of necessary parties?
A3, partition deed, were number scheduled in the plaint and since the plaintiffs had number prayed for redemption of their shares as per Ext.
6 Whether the documents are companypetent and supported by companysideration and necessity?
The trial companyrt further found that Ext.
2 Whether the plaintiffs are entitled to get partition and redemption as prayed for ?
In view of the said companycurrent findings of fact of the companyrts below numberexception companyld be taken to the direction of the single Judge as companyfirmed by the Division Bench that the plaintiffs were entitled to redeem the original mortgage to the extent of 70 cents of land companyered under the mortgaged deed and Purakkadam document on payment of mortgage amount.
The issues were answered accordingly.
As numbered earlier the entire 70 cents of suit property was companyered under Ext.
By permitting the plaintiffs to deposit the mortgage money as per document No.2452/56 mortgage representing their share and to get vacant possession from the defendants who are in possession.
The parties were directed to bear their own companyts.
She mortgaged the said property with one Velayudhan Pillai for Rs.2,000/ on 9.8.1956.
It was the case of the plaintiffs that Subbayyan Chettiar was neither entitled to a share in the property of Muthummal number was he entitled to represent the minor children of Muthummal after his second marriage.
During his life time Subbayyan Chettiar claiming himself as guardian of the plaintiffs and his other minor children through deceased Muthummal got executed a partition deed, on 19.9.1963 under which the plaint schedule property was partitioned amongst the children of Muthummal and Subbayyan Chettiar in equal shares.
Against the said judgment the defendants 7 and 8 filed appeals AFA Nos.44/92 and 47/92 which were decided by the Division Bench on 13.8.1992.
Consequently, the trial companyrt answered the issue number 2 against the plaintiffs.
A 6, mortgage deed and Ext.
A 7, Purakkadam document, were number companypetent and number supported by companysideration and necessity therefore the said documents were liable to be set aside.
Defendants 7 and 8 filed As No.238 of 1981 while the plaintiffs filed AS No.216 of 1981.
A 6, mortgage deed, and Ext.
Subbayyan Chettiar died on 6.1.1975.
1991 in which AS No.238/81 was dismissed and AS No.216 of 1981 was allowed and a preliminary decree for redemption was passed in favour of the plaintiffs.
On her death the property devolved on her seven children, the plaintiffs, defendants 1 to 4 and Leelammal, mother of 5th defendant.
A 3, partition deed, they were number entitled to redeem their shares in the same.
The finding of the trial companyrt that A 6 the mortgage deed and A 7 the Purakkadam document were supported by necessity and or companysideration was companyfirmed by the learned single Judge on independent assessment and appreciation of the evidence on record.
4 Whether the suit is barred by limitation?
A 7, Purakkadam document, were set aside.
A 7, Purakkadam document, were number supported by companysideration and necessity and that they were number binding on the plaintiffs.
A 7, Purakkadam document, which were held to be invalid and number binding on the plaintiffs.The suit property as described in the schedule to the plaint is 93 cents of land under survey No.86/7 in Niyamam village.
Defendants 7 and 8, who were the main companytesting defendants in the suit, refuted the allegations made in the plaint, raised the plea of suit being barred by limitation and the plea of number joinder of Leelammals husband who was a necessary party in the suit.
3 What, if any, is the value of improvements ?
Subbayyan Chettiar and the 1st defendant Renkaswamy Chettiar who was the only major son at the time, sold 23 cents of property which was allotted to them under the partition deed to one Gopala Krishnan and he had redeemed that property 23 cents on payment of a portion of the mortgage amount to the original mortgagee.
On the above findings the trial companyrt decreed the suit in part declaring that Ext.
The judgment of the trial companyrt was challenged by the companytesting parties.
Ext A 6, mortgage deed, and Ext.
Considering issue No.4 the trial companyrt held that since the suit was filed within 8 years after the first plaintiff attained majority the suit was number barred by limitation.
The judgment of the Division Bench is under challenge in the present appeals.
The learned companynsel appearing for the parties before us reiterated the stand taken by the parties before the High Court.
For granting the relief to the defendants, all necessary orders regarding injunction, receiver appointment etc.,
It was stipulated in the mortgage deed that the mortgagee would number spend more than Rs.500/ for companystruction of a house on the mortgage property and he would number claim anything more than Rs.500/ towards value of the building companystructed by him in the property, at the time of redemption.
Defendants 2 to 5 filed joint written statement supporting the plaint and claiming partition and separate allotment of their 4/7th share of the plaint schedule property.
The first defendant remained ex parte.
Under issue No.2 the trial companyrt found that since the shares allotted to the plaintiffs under Ext.
P.MOHAPATRA,J. Having lost the case before the trial companyrt, the single Judge and Division Bench of the High Court of Kerala, defendants 7 and 8 have filed these appeals assailing the judgment rendered by the Division Bench on 13.8.1992 in AFA No.44/1992 and 47/1992.
