PARU LAKSHMI Vs. KOMA BHARATHI
HIGH COURT OF KERALA
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(1.) This is an appeal from a decree in a suit for partition after setting aside an Udambadi' and a decree. The plaint property belonged to one Kochu Kali and her three deceased sons, Kochukrishnan, Achakunju and Kunjunni. Plaintiff and the 4th defendant are the children of Kochukrishnan, the eldest son of Kochu Kali. Defendants 1 to 3 are the children of the second son of Kochu Kail and defendants 5 and 6 are the children of the youngest son of Kochu Kali. Plaintiff's paternal grandmother, namely, Kochu Kali had executed two mortgage deeds in respect of the property with the junction of the other three coowners. The mother of defendants 1 to 3 obtained an assignment of the said mortgages. She filed two suits, O. S. No. 566 of 1114 and O. S. No. 1011 of 1121, on the mortgages and obtained decrees and in execution of the two decrees purchased two items of property. In execution of the decree in O. S. No. 566 of 1114, the purchase was of a property having 80 cents in extent. The plaintiff's case is that the sale and execution are vitiated, because the suits were filed against Kochu Kali after her death.
(2.) So far as the decree in O. S. No. 1011 of 1121 no contention as regards its validity has been raised before me. So, the only question for consideration in this appeal is whether at the time when the suit in O. S. No. 566 of 1114 was filed Kochu Kali was alive.
(3.) The Trial Court found that Kochu Kali was dead on the date of institution of the suit in O. S. No. 566 of 1114 and therefore the decree and the sale in execution were null and void.;
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