Decided on March 12,1963

RAMAN Appellant


- (1.)The second appeal arises out of a suit on simple mortgage for the recovery of the mortgage money. The suit was decreed against two out of three shares in the mortgage property by both the lower courts and the 8th defendant has filed the second appeal against that concurrent decision.
(2.)The facts that emerge in the case may be briefly noted. The property originally belonged to Adichan Ayyan on kanapattom right, the jenmi being the Akavur Mana. After Adichan Ayyan his son Ayyan alias Ayyappan inherited the property. Ayyan alias Ayyappan had two children, Chandran and Ayyappan, by his first wife and the 7th defendant was his second wife. After the death of Ayyan alias Ayyappan the 8th defendant obtained a gift of the property under Ext. I in 1117 from the 7th defendant reciting that she was solely entitled to the property after the death of her husband. Disputes thereafter arose regarding possession of the property between the 8th defendant on the one hand, and Chandran and Ayyappan on the other, resulting in criminal proceedings in 1118. In 1120 the 7th defendant cancelled the gift deed by Ext. B. During the pendency of the criminal case Chandran and Ayyappan created the suit mortgage Ext. A in 1118 and borrowed amounts for the prosecution of the criminal case. The suit was by the 1st respondent mortgagee based on Ext. A for the realisation of the amount so lent.
(3.)The contesting defendant was the 8th defendant as already indicated. He contended that Chandran and Ayyappan had no right in the property, since they were not the children of Ayyan alias Ayyappan. According to him the 7th defendant was the only heir of Ayyan alias Ayyappan and from her he obtained the entire right under the gift. Both the lower courts considered the question whether the 7th defendant was the sole heir of Ayyan alias Ayyappan and whether Chandran and Ayyappan had any right in the property. It may also be mentioned that the case of Chandran and Ayyappan in Ext. A was that the 7th defendant was not the second wife of their father, but she was brought for the purpose of looking after or nursing him after their mother died.

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