1. Defts. 5 & 6 are the applts. The suit is for recovery of the plaint building from the defts. This building as well as the compound on which the building is standing, were sold in Ct. auction as per the decree in O. S. No. 1045 of 1101 of the Kottayam Munsiff''s Ct. & were purchased by the pltf. decree-holder. Under Ex. E delivery by chit, these properties were duly delivered over to the auction purchaser on 12-3-1113. Subsequently the defts. were allowed to occupy the building under a rental arrangement. The auction-purchaser in O. S. No. 1045 of 1101 sold her rights in respect of these properties to the present pltf., & accordingly he instituted the present suit for recovery of the building from defts. 1 to 6. The suit was resisted by deft. 6 alone who contended that the decree & the execution proceedings in O. S. No. 1045 of 1101 are not binding on the sub-tarwad of defts. 1 to 6. According to her, the property involved in O. S. No. 1045 of 1101 was acquired by her father, Achu than, in the name of deft. 1 for the benefit of her self & her children who are defts. 2 to 6. Deft. 6 also contended that deft. 1 who was the sole deft. in O S. NO. 1045 of 1101, could not represent the sub-tarwad. The trial Ct. accepted these contentions & dismissed the pltf.''s suit. On appeal by him, the lower appellate Ct. revsd. the trial Ct.''s decree & the pltf.s suit was decreed in terms of the plaint. Hence this appeal by defts. 5 & 6.
2. The plaint building is standing on the compound known as Athitnattathukala Puraiyidcm. This property was put chased by deft. 1 under Ex. I sale deed dated 29-10-1092 from her husband Achuhan. On the basis of the fact that Ex. I sale was by the husband to deft. 1, it is argued on behalf of the applts. that the purchase must be presumed to have been made by the husband with his own funds & for the benefit of his wife & children. Any such presumption can arise only in the absence of evidence to the contrary. In the present case Ex. I by itself is sufficient to negative the theory that Ex. I acquisition was intended to be for the sub-(SIC) of deft. 1 & her children. The consideration (SIC) or EX. I sale-deed was Rs. 880 out of which as. 625 was recovered for discharging a debt charged on be property. The balance of Rs. 255 alone was said as ready cash consideration. It is expressly dated in the sale deed that such consideration was (SIC) out of the separate funds of deft. 1. There is (SIC) evidence in this case to show that the funds (SIC)tilised by deft. 1 were supplied to her by her husband himself. The contesting deft. 6 who was born only sometime after the date of Ex. I sale deed could not have any direct knowledge regarding that matter. The witnesses examined on her side also do not say that deft. 1''s husband had funds of his own or that he had helped deft. 1 with his own funds for discharging the debt recited in Ex. I.
3. On the date of EX. I itself deft. l is seen to have paid off the major portion of the debt mentioned in the document. For the balance of that debt, she executed Ex. II hypothecation bond. The hypothecate later on sued on that bond & obtained the decree in O. S. No. 1045 of 1101 Ex. v. is copy of that decree. In execution of that decree the building which stood on the decree property was attached & both the property & the building were sold in Ct. auction. Ex. B is the sale certificate issued in favour of the auction purchaser. It is clear from all those circumstances that the acquisition under Ex. I was a separate acquisition made by deft. 1 with her own funds. Even if she had derived any help from her husband in the matter of making the acquisition under Ex. I, the deliberate statement made in the document that deft. l''s own funds were utilized for making the acquisition is a sure indication that the parties intended the acquisition to be the absolute property of deft. 1. There is nothing in law to prevent any such separate acquisition being made in the name of a Mammakkathayee woman by her husband. Thus in any view of the case, the applts.'' contention that Ex. I acquisition was for the benefit of the sub-tarwad of defts. 1 to 6 is clearly unsustainable. It may also be mentioned in this connection that Ex. v. decree & the execution proceedings which followed it have not been impeached by deft. 1''s children at any time prior to the present suit. Even in the present suit defts. 2 to 5 who are. the sons of deft. 1 did not come forward to contest the suit. Deft. 6 who is the youngest daughter of deft. 1 alone has chosen to impeach the validity of the execution proceedings in EX. V. case. As already stated, her contention regarding the nature of Ex. I acquisition is untenable & it was rightly negative by the lower appellate Ct.
4. Regarding the building the applts. have put forward a special contention that it wa3 put up by their father Achuthan long after the date of Ex- I sale deed. Here again there is no reliable evidence in support of the applts.'' contention. Ex. I sale-deed shows that even at that time there was a building in the property & that what WAS sold under Ex. I was the compound together with the building thereon. There is nothing to show that the plaint building is different from the building mentioned in Ex. I. The difference in the description of the building as contained in the plaint schedule & in Ex I sale deed cannot lead to any such inference. In Ex. I there was only a general description of the building while in the plaint schedule greater details are given in describing the building. All the same both the descriptions indicate that they refer to the same building. There is no dence to show that the building which was acquired under Ex. I sale-deed had been demolished & a new building was constructed in its place. Hence much reliance cannot be placed on the evidence of Dws. 1 to 3 who swear that the plaint building was put up by deft. 1''s husband himself. Even if it had been put up by him prior to the date of EX. I sale deed, all his rights in respect of the building passed on to deft. 1 under Ex. I. It is in evidence that even after Ex. I sale deed he was living in the very same property along with his wife & children. It is only probable that some repairs or additions to the building might have been made by him even after the date of Ex. I sale deed. But so long as the property & the main building remained the separate property of deft. 1 any subsequent additions to the building could also be claimed by her as part of her own property, it is seen that this property was also attached & sold in execution of Ex v. decree & was delivered over to the auction-purchaser. Ex. E is copy of the delivery kychit. Defts. 2 to 4 are seen to have attested the delivery kychit. They have not come forward to deny such attestation or the delivery of the building as per Ex. E.
5. All the above circumstances are definitely against the case now set up by deft. 6 The lower appellate Ct.''s findings that the plaint building also belonged to deft. 1 & that it was delivered over to the auction purchaser in Ex. v. case as per Ex. E delivery kychit, do not therefore call for any interference, The occupation of the building by the defts. subsequent to EX. V. delivery could only be under the arrangement as set up in the plaint. It follows therefore that the pltf. is entitled to recover the building from the defts. The lower appeldate Ct''s decree to that effect has only to be confirmed.
6. In the result this appeal is dismissed with cost.
