VELAYUDHAN PILLAI Vs. OUSEPH AND ANR.

JUDGEMENT

(1.) THE sole Defendant is the Appellant in this second appeal. The suit was for recovery of possession of a piece of land with arrears of and future rent on foot of an oral lease alleged to have been given by the 1st Plaintiff who is the uncle of the Defendant. The parties belong to the Nair community. Under an udampadi of the year 1092 (Ex. I), the property in question in the case was put in the possession of the 1st Plaintiff for a life estate, with liberty to encumber it to the extent of Rs. 500/ -. This privilege was availed of by him and the mortgagee filed O.S. No. 707 of 1102 which ended in a decree for sale. In execution thereof, the property was purchased by the decree -holder. He did not, however, apply for or obtain delivery of possession which could at that time have been only symbolical because the property was out -standing with the Defendant as lessee under the 1st Plaintiff who was the judgment -debtor. The Defendant did not allow the matter to rest at that but in his turn levelled an attack against the decree and sale in O.S. No. 707 by filing O.S. 171 of 1112 to set aside the decree and execution proceedings including the sale. In that attempt he was worsted. Exts. II and III which are the Diary and the File Book in respect of the litigation prove these facts.

(2.) ANOTHER question that arises for consideration is what exactly is the nature of the interest obtained by the 1st Plaintiff as per Ex. I, whether it is a life estate or a right of full ownership. A determination of, this question is in the view that I have taken upon the first point purely academical because even if the 1st Plaintiff did obtain complete ownership under Ex. I or by some arrangement thereafter, he having encumbered the entire property and that encumbrance having been enforced by suit, decree and sale, whatever rights he had on the property were lost by him on account of that sale and its confirmation. If the 1st Plaintiff had only a life estate then the reversion vests in the Defendant and other members of the tarwad. There was nothing that the first Plaintiff could make a gift of in favour of his daughter, the 3rd Plaintiff. As already stated, this last question does not arise for consideration in view of the conclusion reached by me as regards want of title in the Plaintiffs to get any of the reliefs asked for in the plaint on account of the sale in O.S. No. 707 of 1102.