SOOSA ANTHONY DECOSTA NICHOLOS DECOSTS Vs. EMAKALAPERUMAL NADAR SIVASUBRAMONIA NADAR
HIGH COURT OF KERALA
SOOSA ANTHONY DECOSTA NICHOLOS DECOSTS
EMAKALAPERUMAL NADAR SIVASUBRAMONIA NADAR
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(1.) The plaintiff is the appellant. The suit is for recovery of properties on the strength of title. The plaint properties which are five in number belonged to the father of the plaintiff who died intestate on 19.10.1109. He was governed by the Travancore Christian Succession Act, II of 1092. He left behind his widow and seven children, the plaintiff and six daughters. It was alleged that of the six sisters of the plaintiff four were married during the life-time of the father and that they were given their Stridhanom. The plaintiff was a minor when his father died. According to the plaintiff, himself and his mother were the only heirs of his father. It was alleged that after the death of the father an arrangement was entered into between the plaintiffs mother and the other relations of the plaintiff by which the mother was given possession of the plaint properties and some other items and the remaining properties were kept in the possession of the plaintiffs paternal uncle who, according to the plaintiff, was his legal guardian. Defendants 1 to 6 were in possession of the plaint properties as lessees under the plaintiffs mother. Under the Christian Succession Act the mother had only a life-interest in the properties and after her death the properties devolved on the plaintiff. The mother died on 10.10.1122. The plaintiff was entitled to get possession of the properties from the defendants. When the defendants were asked to surrender possession of the properties they set up title to the properties and refused to surrender possession. The plaintiffs mother was not competent to alienate the properties so as to defeat the title of the plaintiff. The plaintiff therefore instituted the suit for recovering possession of the properties from the defendants with mesne profits at the rate of Rs. 500 a year and also for past mesne profits amounting to 3,500 fanams.
(2.) Defendants 1 and 2 filed a joint written statement in the case. Defendants 4 and 5 filed separate written statements. Defendants 3 and 6 were ex parte. Defendants 1, 2, 4 and 5 denied the lease set up in the plaint. They claimed items 1, 3 and 4 under three sale deeds executed in their favour by the plaintiffs mother and his four adult sisters the mother acting also the guardian of the plaintiff and the two minor sisters. The sale deeds are Exts. VIII, X and XI dated 11.10.1110. Ext. VIII was in favour of defendants 1 and 2 in respect of item No. 1. Ext. X was in favour of the 4th defendant in respect of item No. 3 and Ext. XI was in favour of the 5th defendant and related to item No. 4. It was contended that the sale deeds were supported by consideration and necessity binding on the plaintiff. It was also contended that the suit was barred by limitation and that the plaintiffs title, if any, to the properties had been lost by adverse possession. The plaintiff had filed O.S. No. 678 of 1123 on the file of the Nagercoil District Munsiffs Court against defendants 1 and 2 for recovery of possession of plaint item No. 1 and that suit was dismissed. It was contended that the present suit was therefore barred by res judicata as regards plaint item No. 1. The plaintiff filed a replication traversing the contentions of the defendants and reiterating the averments in the plaint. The plaintiffs mother and sisters had executed sale deeds in respect of plaint items Nos. 2 and 5 in favour of defendants 3 and 6. But those defendants did not contest the suit.
(3.) The court below held that the suit was barred by limitation as regards plaint items Nos. 1, 3 and 4 and that the plaintiffs title to these properties has been lost by adverse possession. It was also held that the suit was barred by res judicata as regards plaint item No. 1. Since defendants Nos. 3 and 6 did not contest the suit the plaintiff was given a decree for recovery of possession of items Nos. 2 and 5 with mesne profits from those defendants. The suit was dismissed as regards plaint items Nos. 1, 3 and 4 and defendants 1, 2, 4 and 5. The parties were directed to bear their respective costs. The 5th defendant had filed a memorandum of objection regarding the order relating to costs.;
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