Mudholkar, J. - (1.) This is an appeal by certificate from the judgment of the Travancore-Cochin High Court which allowed the appeal preferred by the respondents from the decree of the District Court of Parur dismissing their suit for declaration of title to and recovery of possession of certain properties and for other consequential reliefs.
(2.) The relevant facts are as follows: The 23 items of property comprised in the schedule to the plaint belonged originally to two persons Ramalinga Iyer ("Iyen" as described by the High Court) and Raman Velayudhan. They sold them on 6-6-1080 (Malayalam Era which roughly corresponds to the year 1905) to Ittiyavira the deceased father of the appellant defendant No. 1. Part of the consideration for the sale was paid by Ittiyavira in cash and for the balance, he executed two hypothecation bonds in favour of his vendors on the same date. One of the bonds was executed in favour of Raman Velayudhan and the amount secured thereunder was Rs. 308-8-0. In respect of this amount, items of property nos. 3, 5, 14, and 18 were hypothecated with Raman Velayudhan by Ittiyavira. The other bond was in favour of Ramalinga Iyer and under this bond. Ittiyavira hypothecated with him items Nos. 1, 2, 4, 6, 13, 15, 17 and 19-23 and also the remaining items subject to the hypothecation bond in favour of Raman Velayudhan, for securing an amount of Rs. 2,191-8-0. On 3-10-1082. Ramalinga Iyer assigned his hypothecation bond in favour of one Sankara Rama Iyer (Iyen" as described by the High Court). The parties are in dispute concerning this transaction. According to one of them, the deed of assignment Ex. V was a sham document and was not intended to take effect while according to the other, it was a genuine document.
(3.) It would appear that Ramalinga Iyer had executed a promissory note in favour of one Anantha Iyer ("Iyen" as described by the High Court). After the death of Ramalinga Iyer, Anantha Iyer instituted a suit against his son Sankara Subha Iyer ("Iyer" as described by the High Court) for recovery of the amount thereunder and obtained a decree Ex. VI on 13-11-1088. Treating the deed of assignment executed by Ramalinga Iyer in favour of Sankara Rama Iyer as a sham document, Anantha Iyer attached the mortgagee rights of Ramalinga Iyer in the hypothecation bond which had been executed in his favour by Ittiyavira. The rights under this bond were sold in execution and were purchased by Anantha Iyer at court auction. In a subsequent partition in Anantha Iyer's family, the rights under the hypothecation bond purchased in execution by him were allotted to his share and that of his brother Manicka Iyer ("Iyen" as described by the High Court). Thereafter, these two persons instituted a suit against Ittiyavira being O. S. No. 59 of 1093 in the District Court at Parur and obtained a decree for realisation of the amount against Ittiyavira. The decree-holders subsequently transferred their decree to one Venkiteswara Iyer ("Iyer" as described by the High Court) which the latter executed and at the court auction held in execution of that decree, he himself purchased the hypothecated properties which are the properties in the suit on 27-4-1099. Exhibit C is the sale certificate which was granted to him by the court. Venkiteswara Iyer eventually obtained possession of the properties on 12-7-1099.;