FRANCIS ROZARIO Vs. VICTORIA PEREIRA
HIGH COURT OF KERALA
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(1.) This appeal is by the 3rd plaintiff in a suit to set aside the final decree and execution proceedings in a prior suit.
(2.) The facts are thus: The suit properties belonged to Gomez, the maternal grandmother of the 1st defendant. She sold them in 1087 to Manuel Pereira, who assigned to Appolonius Rozario, who executed a settlement (gift) (copy, Ext. D) on Medom 26, 1122 (May 9,1947) in favour of her sons, the plaintiffs 1 and 2. The appellant is the wife of the 1st plaintiff. In O. S. No. 1585 of 1100 on the file of the Munsiff, Trivandrum, the sale deed of 1087 executed by Gomez was impugned by the mother of the 1st defendant Ext. A is the preliminary decree in that suit, passed by the High Court, setting aside the sale in regard to her one fourth share, directing separation of that one fourth by a final decree in the suit, declaring the annual mesne profits of that share at fanams 2 cash 10, and ordering payment of fanams 790 cash 2 as compensation for improvements to Appolonius Rozario. Ext. B is the final decree passed by the Munsiff, on July 16, 1948. It awarded mesne profits at Rs. 10/- from the date of suit and made no mention of compensation for improvements. Through guardian, the 1st defendant executed the final decree for the monies due under it, purchased in court sale the plaint B schedule property on March 20, 1951, and took possession thereof on October 20, 1951. Plaintiffs 1 and 2, who were in Malaya, challenge the vires of the final decree in so far as it is not in conformity with the preliminary decree and of the execution proceedings had thereon, and seek to recover possession of the plaint B schedule property with mesne profits, past and future, praying that the decree may be made in favour of the 3rd plaintiff. The Munsiff decreed the suit; but the Subordinate Judge has reversed it. Hence this second appeal.
(3.) Counsel for the appellant contended that in so far as rate of mesne profits has been varied and compensation for improvements has not been mentioned, the final decree is not in conformity with the preliminary decree and is therefore beyond jurisdiction and void. I do not think that a direction for payment of compensation for improvements made in absolute terms in the preliminary decree should necessarily be repeated in the final decree. Even if that ought to have been done, its omission cannot make the decree a nullity.;
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