NARAYANA BHATTA Vs. PURUSHOTHAMA BHATTA AND OTHERS
LAWS(KER)-1967-4-12
HIGH COURT OF KERALA
Decided on April 07,1967

NARAYANA BHATTA Appellant
VERSUS
Purushothama Bhatta And Others Respondents

JUDGEMENT

Krishnamoorthy Iyer, J. - (1.) THE plaintiff is the appellant and the appeal arises out of a suit filed for partition and recovery of possession of 1/3 share in the plaint B schedule properties. The facts as disclosed in the plaint can be stated thus. The plaintiff and defendants 1 to 4 are members of a Hindu family known as Bella family governed by the Hindu Mithakshara Law. The B schedule properties to the plaint belong to the joint family. The plaintiff and the second defendant are brothers being the sons of the 1st defendant who is their father and they constitute one branch, while defendants 3 and 4 constitute another branch. The joint family included a third branch consisting of the 5th defendant, his father Ramachandra Bhatta and the 6th defendant. The branch of Ramachandra Bhatta and defendants 5 and 6 got divided from the family prior to 1921. The properties comprised in plaint C schedule, Part I, belonged to the third branch. The 6th defendant and Ramachandra Bhatta executed Ex. B -2 mortgage with possession dated 15 -11 -1921 for Rs. 5000/ - in favor of Bella Madhava Bhatta who was the manager of the joint family of the plaintiff and defendants 1 to 4 then. On the same day Madhava Bhatta executed Ex. A -5 sub -mortgage in favor of Ramanna Bhatta for Rs. 2000/ -. The 8th defendant is the son of the sub -mortgagee Ramanna Bhatta. Bella Madhava Bhatta died on 10 -5 -1927. After his death, the manager of the joint family of the plaintiff and defendants 1 to 4 was Bella Rama Bhatta. The sub -mortgagee filed O.S. 333 of 1934 on the file of the District Munsiff's Court, Kasaragod for recovery of the amount due under the sub -mortgage. Defendants 1 and 2 to the said suit are the mortgagors who executed Ex. B -2, the third defendant to the suit was Bella Rama Bhatta who was the then joint family manager of the plaintiff and defendants 1 to 4, defendants 4 to 7 to the said suit are the sons of Bella Madhava Bhatta, the 8th defendant to the said suit the present first defendant, the 9th defendant therein is Achutha Bhatta a brother of the present first defendant and the 10th defendant to the said suit is the present plaintiff who was then a minor, and he was represented by his father as guardian ad litem. Ex. B -3 is the preliminary decree dated 1 -11 -1935 passed in the suit directing the defendants to that suit to pay the sub -mortgage amount with all interest accrued due or before 1 -3 -1936 and in default authorizing the sub -mortgagee to apply for a final decree for the sale of the mortgaged property and if there is any balance due after the sale of the mortgage holding to apply for a personal decree against the assets of the deceased Bella Madhava Bhatta for the recovery of the balance. Since the amount decreed was not deposited the sub -mortgagee applied for a final decree for the sale of the mortgage holding. Ex. B -4 is the copy of the final decree passed on 9 -1 -1937, directing the sale of the hypotheca. Even before the institution of O.S. 334 of 1934 Bella Achutha Bhatta the brother of the first defendant filed O.S. 28 of 1933 on the file of the Subordinate Judge of South Canara on 11 -3 -1933 for partition and recovery of his share in the joint family properties. Ex. B -79 is the copy of the plaint in the suit. The disputes were compromised among the members of the joint family who filed the compromise petition R.I.A. 234 of 1936 in the said suit. A final decree Ex. A -2 was passed on 6 -3 -1936 decreeing the suit in terms of the compromise. By Ex. A -2 the joint family was divided into two branches. Defendants 2 to 5 in the said suit who are the members of the branch of Madhava Bhatta were allotted the B schedule properties in the compromise petition while the branch of the present 1st defendant consisting of himself, plaintiff and Achutha Bhatta was allotted the A schedule properties therein. The branch of the 1st defendant got possession of the A schedule items in the compromise petition under Ex. B -83 delivery receipt dated 27 -7 -1934.
(2.) IN execution of Ex. B -4 the final decree in O.S. 334 of 1934 the mortgaged properties were sold in court auction in pursuance to R.E.P. 1178 of 1937. Ex. B -5 is the proclamation of sale. The properties in Ex. B -5 were sold in court auction in two lots, on 1 -11 -1939. Lot No. 1 was purchased by Narayana Bhatta and Ex B -6 is the sale certificate evidencing the same. Lot No. 2 was purchased by Puru shothama Bhatta and Ex. B -7 is the sale certificate evidencing the same. The rights under Ex. B -7 were assigned by Purushothama Bhatta to the 7th defendant by executing Ex. B -9 on 24 -3 -1941. Ex. B -6 and B -7 show that by the sale of the hypotheca the entire amount due to the sub -mortgagee under the decree was not realized. The sub -mortgagee therefore filed R.I. A. 888 of 1939 under Order 34, Rule 6, C.P. C. for a personal decree against the assets of the deceased Bella Madhava Bhatta in the hands of the respondents to that application for the recovery of the balance. The application was allowed by Ex. A -10 order dated 2 -2 -1940 and Ex. A -6 is the decree based on Ex. A -10. The sub -mortgagee in execution of Ex. A -6, filed R.E. P. 385 of 1940 for bringing to sale certain items of immovable properties as the assets of deceased Bella Madhava Bhatta for the realization of the balance due. Ex. B -12 is the proclamation of sale filed in R.E. P. 385 of 1940. Ex. A -12 is the order dated 8 -4 -1941 allowing R.E. P. 385 of 1940. The properties in Ex, B -12 were sold in two lots and they were purchased by the 7th defendant. Ex. B -13 the sale certificate shows that the court sale was on 20 -3 -1942 and it was confirmed on 28 -5 -1942. Even by the sale of the properties in Ex. B -13 the balance of the decree amount was not realized in full. The sub -mortgagee therefore filed R.E. P. No. 788 of 1943 in R.I. A. 888 of 1939 for bringing additional properties for sale as the properties of the deceased Bella Madhava Bhatta. The sale was held on 10 -4 -1944 and it was confirmed on 16 -6 -1944. The court auction purchaser was the 7th defendant. The properties under Ex. B -13 were delivered to the 7th defendant on 26 -7 -1942 evidenced by the delivery receipt Ex. B -15, while the properties in Ex. B -18 were delivered to him on 9 -3 -1947 evidenced by Ex. B -19 delivery receipt. It is agreed that all the properties included in the plaint B schedule are taken in by Ex. B -13 and B -18. The plaintiff's prayer in the suit is for partition of the plaint B(1) schedule items and recovery of his l/3rd share after partition by metes and bounds in those items, after declaring that Ex. A -2 is not valid and binding to the extent it has provided for the discharge of the liability under Ex A -5 and after declaring that Ex A -10 and A -6 and the court sales evidenced by Ex. B -12 and B -18 are not valid and binding on the plaintiff and his interest in the plaint Schedule B (1) items. Before the institution of the suit giving rise to this appeal the mother of the plaintiff acting as his next friend filed O.S. 11 of 1947 on the file of the Subordinate Judge's Court of South Canara for the identical reliefs. That suit was dismissed on 28 -10 -1948. Ex. B -l is the copy of the judgment. There is also a prayer in the present suit to set aside Ex. B -l as well on the ground of negligence on the part of the next friend.
(3.) THE suit was contested mainly by the 7th defendant. His contentions are that the Ex. A -2 and A -5 are valid and binding on the plaintiff, Ex. A -10, Ex. A -6 and the court sales evidenced by Exs. B -13 and B -18 are all binding on the plaintiff, the suit is barred by limitation and also by res judicata on account of A -10 and A -6 and the orders for sale passed in execution of the decree in O.S. 334 of 1934 and that the suit is barred by Section 47 of the Civil Procedure Code.;


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