Thomman Thommankunji and Others vs Kunjumeethiyan Kochukunjali Narayana

Govinda Pillai, J.—These three are connected appeals. The Appellants are same in all these cases. In A.S. 212 and 214 of 1122, the Respondent is the same, whereas in A.S. 213 of 1122, there are two more parties, besides the Respondent in A.S. 214 of 1122. These three appeals were concerned only with the claim advanced by the Plaintiffs against the common Respondent. Plaintiff 1 in O.S. 33 of 1110 is the sister of Plaintiff 2 and Defendant 3. Defendant 4 is their mother. The father of the Plaintiff and the husband of Defendant 4 was one Thomman, the deceased elder brother of Defendants 1 and 2. Thommen''s father was one Thommen Kunji who died in 1089. Thommen died in 1091. The exact date of his death was not known. But it could, be between the 15th and 26th of Kanni 1091. At the time of Thommen''s death, Plaintiffs 1 and 2 and Defendant 3 were minors. The properties inherited by Thommen from his father Thommen Kunji had not been divided and they were in the possession of Defendants 1 and 2. The properties described in A schedule to the plaint were those inherited by the three brOrs. The properties in the B schedule were those acquired by Thomman with his own funds, and to these properties Plaintiff 2 and Defendant 3 were the only heirs, subject however to Plaintiff 1''s claim for streedhanam.

After the death of Thommen, the Plaintiffs and Defendants 3 and 4 left Thommen''s family house in Munampom and lived with Defendant 4''s maternal grandfather Vakko in Elankunnapuzha in Cochin State. Defendants 1 and 2, taking advantage of the helpless condition of the Plaintiffs and Defendants 3 and 4, had executed several documents for the plaint properties, fraudulently and without any consideration. In some of these documents, the name of Defendant 4 had been included as the guardian of the Plaintiffs, and also as a co-executant. She was really no party to these documents, and so these were got registered by false personation. the Plaintiffs also put forward an alternative case, that even if it was found that Defendant 4 had joined in the execution of any of these documents, they could not bind Plaintiffs 1 and 2 and Defendant 3, as Defendant 4 would have joined in the same only because of fraud and misrepresentation practised upon her. She was also incompetent to act as the guardian of her children, for she was neither their legal nor de facto guardian, as after Thomman''s death, they were really under the care and control of their maternal grandfather Vakko. In these appeals it is not necessary to go into the allegations made by the Plaintiffs against the Defendants other than Defendant 14 in Order Section 33 of 1110, as question raised in all these three appeals related only to the claim they advanced against him.

As regards Defendant 14 in O.S. 33 of 1110, who is Respondent 1 in all the three appeals, the Plaintiffs'' case is as follows: Defendant 14''s father and his brother were co-foremen in chitty started in 1080 with a capital of Rs. 12,000. Thommen was a subscriber for one ticket in this chitty from the very beginning, and at the time of his death, 22 drawings were already over. After his death, due to the helpless condition of his wife and children, they did not subscribe for the further instalments in the chitty. The chitty terminated in 1100, so that as the legal representatives of Thomman, they were to get Rs. 6600 and interest from 1100 on account of paid up subscriptions. The suit in O.S. 34 of 1110 (A.S. 213-of 1122) is for the realisation of this chitty money. After Thomman''s death, Defendants 1 and 2 in O.S. 33 of 1110, treating the chitty asset to be a. family concern, prized the ticket and brought into existence a chitty hypothecation bond Ex. X on 16-2-1092. Defendant 4''s name appears there as one of the executants. She had not really joined in the execution of the same and she had also not received any amount under Ex, X The prize amount said to Slave been received by dependents 1 and 2 was also not utilised for discharging any of Thomman''s debts. Subsequently, on the allegation that default in the payment of futures subscriptions was committed from the 28th instalment, Defendant 14''s father filed O.S. 57 of 1095 on Ex. X for future subscriptions and obtained a decree in the Parur District Court on. 1-11-1097. Exhibit E is copy of that decree. The properties hypothecated were items 65, 66 and 67 in A schedule, and item 13 in the B schedule. In execution of that decree, these properties were purchased by the decree-holder in Court auction. Exhibit XVI is the sale Sannnd. These properties were obtained delivery of possession by the auction-purchaser. The decree and the execution proceedings were attacked by the Plaintiffs. It was stated, that though the Plaintiffs and Defendant 3 were added as Defendants in that case, with their mother Defendant 4 to represent their, there was no service of notice on the petition to appoint the guardian, nor was there any express consent of guardian to act as such. The guardian was not aware of the proceedings in the suit and execution. She was also not a competent guardian. No notice in execution was served on Defendant 4 and so it was stated that the execution proceedings would not be binding on the Plaintiffs and Defendant 3. In the present suit, the Plaintiffs therefore claimed Thommen''s one third share in A schedule items 65, 60 and 87 and also the entire mortgage right over item 13 in B schedule. They had also mentioned these three items in A schedule as items 10, 11 and 12 in the B schedule. In the plaint, it had not been mentioned why these properties were repeated in the two schedules. But it was admitted before us that the B schedule items 11 and 12 were mentioned separately, as Thomman had the mortgage right over these properties. Evidently, therefore, their prayer in the plaint has to be taken as one for the declaration of their right over the mortgage amount.

After Ex. XVI Court sale, the auction-purchaser filed a suit in O.S. 44 of 1103 for the mortgage amount charged on B schedule item 13, and also for the arrears, of rent, as the mortgagors had under Ex. D taken these properties on lease from Thomman the mortgagee. The mortgage deeds in favour of Thomman are Exs. B and C. He obtained a decree, and in execution sold the equity of redemption on 5-5-1105. The sale was confirmed on 28-7-1107 and Ex. XXII is the sale certificate issued to him. Pursuant to this he also obtained delivery of possession on 28-7-1107. The present Plaintiffs had filed O.S. 35 of 1110 for the amount due under Exs. B, C and D. In that suit the original mortgagors and the present Defendant 14 are parties. The suit was dismissed and the appeal against that decree is A.S. 212 of 1122.

These three suits, O.S. 33, 34 and 35 of 1110 were tried together and the evidence required for the three cases was recorded in O.S. 33 of 1110. The parties are therefore referred to according to their position in that suit. The documents referred to are also those filed in the partition suit. Plaintiff 2 died after the institution of these suits and so Defendant 3 who was his legal representative was transposed as the additional Plaintiff 3. The Chitty foreman''s present legal representative is Defendant 14 in O.S. 33 of 1110. He is Defendant 1 in O.S. 34 of 1110 and Defendant 4 in O.S. 35 of 1110. His contentions were that Plaintiff 1 had no right in her father''s properties, that she was not entitled to sue on behalf of Plaintiff 2 or Defendant 3, that Defendant 3 had attained majority more than three years before the institution of the present suit, that the suit was therefore barred by limitation, that at any rate, the suit was barred as regards Defendant 3''s claim in the plaint properties, that though the chitty Kykanakku stood in the name of Thomman, the person who really paid the money was Thomman''s father Thomman Kunji, that the Chitty Kykannakku was therefore taken by Thommen for and on behalf of the family, that Thomman had paid the subscriptions only after the death of Thomman Kunji, and that too on behalf of the family out of the family assets, that after the death of Thomman, Defendant 1 paid the future subscriptions, that in order to pay off the debts incurred by Thomman as manager of the family and other debts binding on the family, the chitty was prized and the prize amount of Rs. 8320 paid to Defendant 1 in the presence of Defendants 2 and 4 before the Sub-Registrar, that of the properties given as security, A schedule item 65 belonged to Thomman Kunji and A schedule 66 and 67 to Defendant 1, that the Plaintiffs had therefore no right over items 66 and 67, that when default was committed, a suit was filed for the future subscriptions in a lump, that Thomman''s children were properly represented in that case by their mother Defendant 4, that she was aware of the suit as well as the proceedings in execution, that she had also intervened in execution and created trouble to delay the termination of the execution proceedings, that there were no grounds for setting aside the Court sale, that the Plaintiffs were also not entitled to the chitty money claimed in O.S. 34 of 1110 nor of the mortgage amount and other amounts claimed in O.S. 35 of 1110, and that they were not to get any relief so far as himself and the properties purchased by him. According to him, Ex. X chitty security bond was fully supported by consideration and the chitty money was utilised for discharging the debts of Thomman and of the family, so that in any event, the transactions entered into by the adult members of the family would be binding on the minors as well. The suits were therefore pressed to be dismissed so far as he was concerned.

The lower Court upheld Defendant 14''s contention and dismissed the suits O.S. 34 and 35 of 1110. Since O.S. 33 of 1110 related to the reliefs claimed against the other persons also that suit was decreed, except as regards Defendant 14 and the properties claimed by him. The suit was dismissed so far as he was concerned. These three appeals were therefore filed by the Plaintiffs, resting their claim to the properties in the possession of Defendant 14. Though the suit against Defendant 14 was dismissed, it was seen that the lower Court had given a decree to the Plaintiff as regards item 13 of B schedule properties. The sale sannad Ex. XVI in favour of Defendant 14 related to items 65 to 67 in A schedule and item 13, in B schedule. So, when the suits were dismissed there should not have been any decree in Plaintiff''s favour relating to the B schedule item 13. This was probably due to the contentions of Defendant 14 confining his case to items 65, 66 and 67 of the A schedule. Vide Para 6 of his written statement in O.S. 33 of 1110, though in Paras. 9 to 11 of the written statement in O.S. 35 of 1110 he had put forward a claim to the mortgage right over the properties scheduled in that suit which was the same as item 13 in 3 schedule. Anyhow, the Judge had given Plaintiff 2 a decree for one-half of B schedule item 13, evidently referring to one-half of the mortgage right over those properties. On payment of necessary Court-Fees, Defendant 3 who was subsequently transposed as Plaintiff 3, was also allowed to get the remaining one-half. Defendant 14 had not appealed against this decree and so that had become final. He had filed objections to certain findings regarding the question relating to ''res judicata'' by virtue of Ex. XXIV decision, and limitation.

Though O.S. 35 of 1110 was dismissed by the lower Court with costs, the Plaintiff''s have filed the appeal against Defendant 14 (Defendant 4 in O.S. 35 of 1110), claiming rent at the rate of Rs. 180/- per annum, and to the order relating to costs. That was done, probably as the Plaintiffs had been given a decree in the partition suit for one-half of the mortgage right over item 13 in B schedule. In A.S. 213 of 1122 which is against the decree in O.S. 34 of 1110 the appeal relates to the entire chitty money said to be due to Thomman. In A.S. 214 of 1122 which is against the decree in the partition suit, the Plaintiffs objected to the partition decree only as regards the A schedule items 65 to 67 and to the order relating to costs. So in these appeals the questions which we have to consider relate only to the Plaintiffs'' claim against Defendant 14.

The first Question which has to be dealt with would relate to the rights of Thomman in the chitty subscribed for in his name. The chitty was started in 1080. The lower Court, had held that Thomman had an independent business of his own. But it did not accept the Plaintiffs'' case that the chitty was subscribed for by Thomman as he was not living away from the family house. That is no argument for holding against him. Exhibit X is copy of the chitty security bond executed by Defendants 1 and 2 and by Defendant 4 as guardian of the Plaintiffs, after the plaint chitty was prized. In that it is stated that till the death of Thomman Kunji, the subscriptions had been paid by him, and that Thomman paid the subscriptions only after his father''s death. It was also mentioned there that the chitty itself was subscribed for the benefit of Thomman''s family, consisting of himself, his brOrs. and his father. There is no evidence to show that this was the intention when the chitty was being subscribed for in Thomman''s name. The law and the presumption relating to Marumkkathayams could not be applied to Christians, though in some old families reference is always made to the tarwad and its management by the father. Thomman himself was an earning member, and he had assets and liabilities at the time of his death. Except the evidence of D.W. 7, Defendant 14''s Kariasthan, there is nothing to show that the chitty was being subscribed for in Thomman''s name by his father and on behalf of the family. He had also stated that the chitty Variyola had been signed by Thomman Kunji for Thomman. But that document had not been produced. No chitty account had also been produced in the case, as all these had been stated to be eaten away by white ants. The admission in Ex. X is sufficient to hold that Thomman himself subscribed for the chitty. After Thomman''s death which was after the 22nd instalment, Defendant 1 got the ticket prized as there were the pressing debts which had to be discharged. The foreman himself was not feeling happy over the ticket which stood in Thomman''s name prized by his brOrs. and the widow. So he got the several recitals in Ex. X made in order to safeguard his interest, in the event of Thomman''s legal heirs questioning the same on a future date. It was mentioned in Ex. X that the money was received for discharging the promissory note debts and other debts of Thomman. It was also undertaken there that the document''s evidencing the discharge of Thomman''s debts would be obtained and handed over to the foreman within a month of that date. There is also a clause in it undertaking to make good any loss that might be occasioned if the minors questioned the arrangement entered into in that document. All these would show that the foreman himself was feeling doubtful about the course of action adopted by him. The finding of the Court below that the chitty belonged to Thomman''s family cannot be sustained. It is held that Thomman himself had subscribed to the chitty out of his own funds till his death.

Thomman died after the subscription of the 22nd instalment had been paid, so that the subscriptions including the Veethapalisa would come to only Rs. 6600. The foreman has to account to Thomman''s children only to this extent. It is mentioned in Ex. X that the money was received for discharging the debts of Thomman under the promissory notes and other documents. In order to discharge Thomman''s debts, it would have been competent for Thomman''s heirs to prize the ticket and discharge the debts. Thomman''s widow who was the only adult member among the heirs was a party to Ex. X. The Plaintiffs in the plaint stated that she had not really joined in it, that the document itself might have been not (got?) registered by some false personation, and that Defendant 4 had no knowledge of what transpired as regards Thomman''s properties, his assets and liabilities. In this they were advancing a false case. Defendant 4, while examined in the case as P.W. 3 had denied everything relating to the chitty and other transactions entered into by her. Plaintiff 1''s father-in-law was financing this litigation and he had taken a hypothecation bond from the Plaintiffs, and in it, was stated that Thommen had executed a promissory note to him for Rs. 4000 and that the same had been renewed by Thomman''s widow on behalf of the minor children. When she was asked about this, she said that die had not executed such a promissory note, whereas Plaintiff 1 as P.W. 4 would say that there was such a note, that Ex. V was executed in favour of her father-in-law and that she had seen the same. Defendant 4 was therefore not in a mood to give out what she knew. Her statement that she was not a party to any document relating to Thomman''s properties could not be true. It is seen from Ex. X that the Sub-Registrar had certified that he knew the executants thereof personally. Their thumb impression was therefore not taken. In this respect the Plaintiff''s case was certainly false. It has to be taken that Defendant 4 is a party to Ex. X and she joined in it for and on behalf of her minor children.

It is seen that when Ex. X was executed, the prize amount of Rs. 8320/- was paid before the Sub Registrar who had made an endorsement to that effect in the document itself. There is therefore consideration for Ex. X. If at least an amount to the extent of Rs. 6600/- had been spent for discharging Thomman''s debts, then the Plaintiffs could not have any further claim against the chitty foreman. Money was due to D.W. 3 under a promissory note executed by Thomman and Anr. D.W. 3 obtained a decree in O.S. 51 of 1091 of the Parur District Court on the same. Exhibit III is copy of the plaint there. It shows that the original promissory note was executed by Thomman also. That suit was decreed and over Rs. 4000/- was due under that transaction. Exhibit IV is the execution diary in that case and it shows that by the time Ex. X was executed Rs. 900 had been paid to the decree-holder. The decree-holder D.W. 3 also swore that the money due under this transaction had been paid by the present Defendant 1. Exhibit III would show that it could not be a family debt for it was a personal debt of Thomman. Exhibit IV would show that the amount to be paid under this transaction was over Rs. 4000/-. The Plaintiffs have no case that this debt was discharged by any one other than Defendant 1. D.W. 3 also stated that the money due to him had been paid out of the chitty money received from Defendant 14''s father and there is no reason to discredit the testimony of D.W. 3 who has impressed the learned Judge considerably as one who spoke the truth, particularly because of his advanced age. He was 92 years old when he was examined. D.W. 3 had also mentioned that money was due to Andi Iyen and Ranga Iyen from Thomman under promissory notes and that the same had also been paid out of the prize amount. D.W. 2 who is a near relation of this Andi Iyen had also sworn to this. The amount due to Andy Iyen was about Rs. 3000 under two promissory notes. D.W. 2 stated that to discharge the same Defendant 1 had paid Rs. 4000 and odd to Andi Iyen. It has not been shown that D. Ws. 2 and 3 are in any way interested in Defendant 14 and for the present purpose their evidence could be relied on to hold that Defendant 1 had spent on behalf of Thomman an amount much more than due to him from the chitty. So, even in 1092, an amount which was more than that due to Thomman had been spent out of the Chitty money for discharging Thomman''s debt. Under these circumstances, Ex. X chitty security bond executed by Defendant 4 on behalf of the minor Plaintiffs has to be accepted as valid so far as minors are concerned.

After the execution of Ex. X, subscription for 6 instalments of the chitty had alone been paid. So the chitty foreman had to institute a suit in O.S. 57 of 1095 in the District Court, Parur. Exhibit E is copy of the decree in that case. The present Plaintiffs had been impleaded in that case and they were represented by their mother the present Defendant 4. Exhibit XIV is the petition filed by the Plaintiffs in that case to appoint the present Defendant 4 as the next friend of her minor children. It shows that the petition was allowed by an order of Court. It was argued that since the proposed guardian had not entered appearance and expressed her consent to act as guardian, such appointment was illegal. There is no justification for this inference. It is seen that the steps taken by the Court in appointing Defendant 4 as guardian by the order on Ex. XIV petition were sufficient to make a valid representation of the minors in the suit. It was true that she remained ex parte in the trial stage. But that does not make her appointment invalid If a guardian after being appointed had no valid defence on behalf of the minors, it will be un-necessary for her to enter appearance and raise untenable contentions. The chitty money had been utilised for discharging Thomman''s debts and so Defendant 4 knew perfectly well that it was a debt that had to be discharged, that future subscriptions for the chitty had to be paid, and that the suit for the same was proper. Because she had no contention to offer, she remained ex parte and this would not make the decree invalid. The finding of the Court below that Ex. E is validly obtained is therefore upheld.

Exhibit XXXII or P is the copy of the execution diary in O.S. 57 of 1095. It culminated in the sale of the hypothecs and the subsequent delivery of the same. The learned Judge in referring to the execution proceedings taken by the two other creditors of the family, that is, Defendants 13 and 15, had held that proper notices in execution had not been served on Defendant 4 and that the sale should not be held to be valid. That was the case in the present instance also and there was no occasion for showing a different treatment in regard to the execution proceedings in this decree. It was seen that after Thomman''s death, Defendant 4 had gone and lived with her maternal grandfather in the Cochin State. Thomman''s family seat was in Munambam and the distance between the two places was about 10 or 12 miles. It was admitted by Defendant 4 that occasionally she used to go and live in Thomman''s house. But she was practically having her permanent residence in the Cochin State when the execution proceedings in most of these cases had taken place. It is held, that ignoring the Court sale, the share in the property sold should be given to the Plaintiffs to the extent to which the suit is not barred by limitation. Since the amount due under the decree was really due from Thomman and his family properties, the Plaintiffs should before getting the share, deposit a proportionate amount covered by the sale certificate. The lower Court had found that in regard to transactions that were entered into after Thomman''s death, the right to impeach the same was to be exercised individually by the heirs. If the decrees were based on transactions which took place during the lifetime of Thomman the coheirs would be held jointly entitled to sue and they could not separately with reference to the respective shares sue in the case of such cause of action. The provision of Section 8, Travancore Limitation Act as interpreted by the ruling in - Rosario v. Gomez 31 Trav LJ 410 (A), would support this view. The lower Court had found that the transactions affecting Defendants 13, 14 and 15 were those that took place after the death of Thomman and, that Defendant 3''s claim would therefore become barred on the principle mentioned above. Defendant 3 had been transposed as Plaintiff 3 and he had submitted to this so far as Defendants 13 and 15 were concerned. It is not therefore proper to allow the finding regarding Defendants 13 and 15 to stand, and invoke a different principle as far as Defendant 14 is concerned. It is therefore held that the execution proceedings in Ex. E case could be re-opened only as regards Plaintiff 2''s one-sixth share in those properties.

The properties sold in Court auction in execution of Ex. E decree were items 65, 66 and 67 in A schedule and also item 13 in the B schedule. Defendant 14 had confined his contentions relating to A schedule items 65, 66 and 67 and this led the Court below to leave out the B schedule item 13 from the purview of Ex. E decree. Since Defendant 14 has not filed any appeal relating to the B schedule item 13, that decree would stand. Plaintiff 2''s legal representatives would be allowed one-sixth share in A schedule items 65, 66 and 67 on his depositing one-sixth of 42241 5/8 fanams less the mortgage amount of Rs. 2000 i.e. one-sixth of 28241 5/8 fanams charged on B schedule item 13.

A schedule items 65, 66 and 67 are repeated as B schedule items 10, 11 and 12. It was not mentioned in the plaint why these items were repeated in the B schedule. The allegation in the plaint was that the B schedule properties were the separate properties of Thomman to which none other than his children was entitled. A schedule item 65, is as seen from Ex. XXVI dated 11-9-1088, a sale deed taken in the name of Thomman Kunju. So it cannot be a separate acquisition of Thomman. As regards A schedule item 66, the sale deed for the same stood in the name of the present Defendant 1. But it shows that his father had taken a ''Nadappu Panayam and a Purakkadam for Rs. 1363 and that Thomman had taken a Purakkadam in 1090 for Rs. 1841. Defendant 1 paid Rs. 1471 and got credit for Rs. 725 due under a promissory note and a-lease deed. The original acquisition was by Thomman''s father and a Purakkadam taken by Thomman. That acquisition could only be on behalf of the family. So Thomman could not have any special interest over A schedule item 66. In regard to item 67, it was seen that Thomman had taken a mortgage and Parukkadam during the lifetime of his father and this came to Rs. 1125. Though the mortgage right was acquired by him during the lifetime of his father, the Plaintiffs cannot now claim a special right over the same as the whole right under items 65 to 67 in A schedule was included in Ex. X. It had been found that Ex. X and the decree Ex. E based on it is binding on the Plaintiffs. So that the special right cannot now be claimed. However the Plaintiffs had been allowed a share in A schedule items 65 to 67 on their depositing a portion of the auction amount. The special right is therefore not allowed.

Defendant 1 had been declared as an insolvent and the Official Receiver who is Defendant 5 in the case had filed a suit for partition of the joint properties to get Defendant 1''s one-third shale in the same. The present Defendant 14 was a party there and he put forward his claim based on Ex. XVI sale sannad. That was excluded and a decree was given to the Official Receiver for one-third of the remaining properties. The Plaintiffs stated that this was not a decree binding on them as they were not properly represented in the case and as valid contentions which they had to offer had not been advanced by their proposed guardian - their mother. The lower Court had found that the decree passed, as evidenced by Ex. XXIV judgment, would not be binding on the minors interest in the properties. It was true that this finding was objected to by Defendant 14. But he was not able to substantiate that contention and show that the finding was wrong. Besides, it was seen that there was no trial about the special right set up by the present Defendant 14 and the Court proceeded on the admission made by the Official Receiver''s Advocate that he did not press his case regarding Defendant 14. We allow the finding of the lower Court to stand. It is held that Ex. XXIV will not operate as res judicata in this case.

What remains to be decided relates to the pattom claimed by the Plaintiffs from Defendant 14 in regard to one-half share decreed to Plaintiff 2. When Plaintiff 2''s right to one-half of the properties is decreed, and when it is seen that from 1107 Defendant 14 is in possession of the properties, there is no reason to disallow the pattom from 28-7-1107 at the rate of Rs. 180 a year for the entire property. That is allowed.

Thus taking all the three cases together, the decree of the lower Court will stand modified

The Plaintiffs'' suit for the chitty money asked for in O.S. 34 of 1110 (A.S. 213 of 1122) is dismissed.

Plaintiff 2''s legal representative is allowed one-sixth share in the entire right over A Schedule items 65, 66 and 67. He will be allowed to get possession of the share thus decreed by division by metes and bounds only on his depositing in Court one-sixth of 42241 5/8 fanams less 14000 fanams on account of the mortgage amount on B schedule item 13. The amount thus deposited i,e., 1/6 of fanams 28241 5/8 will be paid to Defendant 14.

The half share in B schedule item 13 ordered to be given to Plaintiff 2 by the decree of the Court below would be only one-half of the mortgage right over B schedule item. 13, so that in case Defendant 14 deposits one thousand rupees (Travancore) in the Court below for being paid to Plaintiff 2''s legal representative, there will be no necessity to divide that property as directed by the lower Court. The sum of one-thousand rupees deposited will be paid to Plaintiff 2''s legal representative. Similarly if Plaintiff 3 pays Court-fees for his share, he will also get Anr. one thousand rupees charged on one-half of B schedule item 13 or one-half of the mortgage right over that property.

On account of the Pattom for B schedule item 13, Plaintiff 2''s legal representative is allowed the same at the rate of Rs. 90 a year from 28-7-1107 till he is given possession of one-half of B schedule property No. 13 or till Defendant 14 deposits in the Court below Rs. 1000 (one thousand) on account of one-half of the mortgage amount. This would be the direction in case Plaintiff 3 also avails himself of the concession granted by the Court below.

As regards the costs, the Plaintiff''s suit for the chitty was dismissed, but without costs. The suit for a share in A schedule items 65 to 67 and B schedule item 13 as well as for the pattom due on account of B schedule item 13 had been decreed. The Appellants-Plaintiffs will therefore get the casts relating to these items, and the Advocate''s fee will be calculated on 2096 fanams claimed in A.S. 212 of 1122 and one-sixth of 42241 5/8 fanams regarding A schedule items 65 to 67 and B schedule item 13. The parties will bear their remaining costs. The amounts decreed will bear future interest at 6 per cent, per annum.

Separate decrees in the three cases will be prepared with reference to the directions in this judgment.

Koshi, C.J.

I agree to the decrees proposed by my learned brother. However I desire to add that on the question of the binding nature of Ex. X and the decree obtained thereon in O.S. 57/1095 my views are not the same as those expressed by my learned brother. At the same time I feel that the commonsense approach my learned brother has made would meet the justice of the case and hence my concurrence in the decrees proposed. On the question of limitation referred to in para 10 of the judgment my learned brother has himself not committed to the view taken in - ''31 Trav LJ 410(A)''. For my part I desire to leave the question open and agree to the decision as the Plaintiffs have tacitly acquiesced in the view the lower Court took about it by not preferring an appeal against Defendants 13 and 15. The memorandum of appeal does not disclose that the further relief, if any, open as against them has been abandoned. There cannot be inconsistent decrees in the same suit in favour of different parties. With these observations, as stated earlier, I agree to the decision now given.