Decided on May 29,1968



- (1.) IN the year 1110 M. E. (1934-35 A. D.) one Kochana, the predecessor of the present plaintiffs, mortgaged the property now in suit and other property to Peter, the predecessor of the present defendants. Kochana died two years later leaving as his heirs his two widows and 11 children. One of these children, Mohammed by name, died, according to the plaintiffs on 13-3-1946, and that case is no longer disputed by the defendants, Shortly thereafter, on 4-3-1947, the mortgagee, peter, brought O. S. No. 681 of 1122 for the recovery of the money due under the mortgage by sale of the mortgaged property. He was then apparently unaware of mohammed's death, and he brought the suit against the two widows and 11 children of the mortgagor, Kochana (and certain alienees of the mortgaged property) as if Mohammed was still alive. Ex. P-1, the summons issued to mohammed was returned with the endorsement that Mohammed was dead. Yet, no steps were taken to bring his legal representatives on record. Among his heirs, his mother, brothers and sisters were already party defendants, but his widow and daughter, the present plaintiffs 3 and 4 -- the defendants no longer dispute that they are his widow and daughter -- were not, and, by some mistake, Mohammed, who was named as the 3rd defendant in the plaint, was declared ex parte and the suit proceeded with as if he was alive. The remaining heirs of Kochana suffered the suit to proceed ex parte and the decree for sale was passed in the mortgagee. Peter's favour on 1-4-1949. In execution of that decree, the property now in suit (two pieces of land each four cents in extent) was brought to sale and bought by peter himself. The sale was confirmed on 2-2-1951, and Peter obtained delivery on 23-6-1951 under the delivery kychit, Ext. D2. Peter died in 1954 leaving his widow and son, the present defendants, as his heirs,
(2.) THE present suit was brought in July 1956, by the heirs of Kochana and of his son, Mohammed, all of whom (or whose predecessors) with the exception of plaintiffs 3 and 4, the widow and daughter of Mohammed, were party defendants in the former suit. The plaintiffs alleged that the summonses and notices in the mortgage suit and the execution proceedings therein were not really served on the parties thereto and that false returns of service were made. According to them, the decree and the proceedings in execution were vitiated by fraud, of which they became aware only shortly before the suit, and Peter's Court purchase conveyed no title to him. They further alleged that Peter did not actually obtain delivery, the so-called delivery under Ext. D2 being a sham transaction, and that the 3rd plaintiff was in actual possession of the property, presumably on behalf of all of them. On these averments, they asked for a decree setting aside the mortgage decree and the execution proceedings pursuant thereto, and giving them a declaration of their title to and possession of the property, and an injunction to protect that possession. In the event of it being found that they were not in possession, they asked for recovery of possession with mesne profits.
(3.) THE plaintiffs' case of fraud, with regard to the service of summons and notice in the mortgage suit and the execution proceedings therein, found favour with neither Court but, the Lower Appellate Court took the view that, in proceeding with the mortgage suit against Mohammed ex parte as if he was alive, Peter, the plaintiff therein, was guilty of fraud, fraud not merely against the heirs of mohammed but against all the defendants in the mortgage suit, even those who had been duly served with summons! The first Court was not satisfied that plaintiffs 3 and 4 were, as they claimed to be the widow and daughter of mohammed. In this view which meant, that all the heirs of the mortgagor. Kochana and his son, Mohammed were party defendants in the mortgage suit and had been duly served with summons, it dismissed the present suit. The Lower appellate Court, however, found that plaintiffs 3 and 4 were the widow and daughter of Mohammed; and that finding, as I have already observed, is no longer disputed. It agreed with the trial Court that Peter actually took possession of the property on 22-6-1951 under Ext. D2 and that he, and after him, his heirs were in possession. But, in the view it took that the decree and execution proceedings in the mortgage suit were completely vitiated by fraud, it gave the plaintiffs a decree for possession. In so doing it placed reliance on the Full Bench decision of this court in Kamakshi Amma v. Gangadharan Pillai, 1953 Ker LT 706= (AIR 1954 trav-Co 60) (FB ). And it did not even consider the plea of limitation raised by the defendants -- after the actual delivery to Peter on 23-6-1951 (which it found) the plaintiffs could scarcely have been unaware of the alleged fraud.;

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