1. This second appeal arises out a suit for partition. O.S.No.14 of 1980 on the file of the Principal Sub Court, Kuzhithurai was filed by K.Ponnumony Nadar claiming partition by metes and bounds and allotment of 21 cents in Item No.1, 1 acres 21 3/8 cents in Item No.2 and 2 acres 78 1/8 cents in Item No.3 of the suit schedule and for separate possession. In the suit, there were as many as 66 defendants. The contesting defendants filed written statement controverting the plaint averments. Based on the divergent pleadings, the trial Court framed the necessary issues.

2.The plaintiff examined himself as P.W.1 and Exs.A1 to A19 were marked. The 27th defendant and 39th defendant examined themselves as D.W.1 and D.W2 and one Gnanathabmi was examined as D.W.3 and Exs.B1 to B109 were marked.

3.After consideration of the evidence on record, the trial Court by judgment and decree dated 16.02.1981 dismissed the suit. Challenging the same, A.S.No.82 of 1981 was filed before the Principal District Court, Kanniyakumari. During the pendency of the appeal, Ponnumony Nadar passed away and his legal heirs were brought on record. The 12th defendant also filed cross appeal. The first appellate Court by the impugned judgment and decree dated 13.03.1996 confirmed the decision of the trial Court and dismissed the appeal suit and the cross appeal. Challenging the same, this second appeal came to be filed by the legal heirs of the plaintiff.

4.The second appeal was admitted on 13.09.1996 on the following substantial questions of law:-

‘1.Whether the Courts below are right in holding that the suit is barred by res judicata by reason of the judgment in O.S.No.199/1960?

2.Whether the Courts below are right in dismissing the suit for partial partition especially when the defendants had not prayed for dismissal of the suit for non-inclusion of any partible item?

3.Having regard to the Oodugur Award passed in respect of S.No.1493, which has become final, are the Courts below right in holding that the non-inclusion of the property in S.No.1493 is fatal to the institution of the suit for partition?

4.When the right of the plaintiff’s predecessors-in-title is recognised in Ex.B53 suit, are the Courts below right in dismissing the suit for partition?’

5.The learned senior counsel appearing for the appellants reiterated the contentions set out in the memorandum of grounds and called upon this Court to answer the substantial questions of law in favour of the appellants and set aside the impugned judgment and decree and grant preliminary decree as prayed for.

6.Per contra, the learned senior counsel appearing for the contesting respondents submitted that the impugned judgment and decree do not call for any interference. The learned counsel appearing for the other respondents also submitted that no case has been made out for granting any relief in favour of the appellants.

7.I carefully considered the rival contentions and went through the evidence on record. The suit schedule comprises three items pertaining to three different survey numbers namely, S.Nos.1495, 1496 and 1498. The appellants seek allotment of 21 cents in Item No.1 which measures 96 cents, 1 acre 21 3/8 acres in Item No.2 which measures 2.82 acres and 2 acres 78 1/8 cents in Item No.3 which measures 11.12 acres. The plaintiff anchored his case on Exs.A1 to A4. Ex.A1 dated 29.06.1959 is a sale deed executed by Anantha Bai Amma in favour of Ponnumony Nadar and others. Under the said document, 42 cents in Item No.1, 1.31 % acres in Item No.2 and 1.16 acres in Item No.3 was sold. Since the plaintiff was one of the vendees, he claimed half share in what was sold under Ex.A1 in the present suit for partition. A careful perusal of Ex.A1 would show that the vendor/Anantha Bai Amma claimed title under partition deed No.1342 of 1105 (Malayalam Era). Unfortunately, only a truncated copy of Ex.A19 was marked. The defendants had specifically contested the title of Anantha Bai Amma to execute Ex.A1. In these circumstances, proving Ex.A19 became imperative. Ex.A19 could not be proved because the entire document was not marked. It is axiomatic settled that Courts will decline to look into truncated documents. Several pages of the partition deed in partition No.1342 of 1105 (Malayalam Era) were found missing and that is why the Courts below rightly held that Ex.A19 has not been proved. Ex.A1 has to stand on the foundation of Ex.A19. Once, the foundation has been undermined, Ex.A1 could not independently stand. That is why, the Courts below concurrently held that the plaintiff cannot claim any title over the suit properties by virtue of Ex.A1. The approach adopted by the Courts below in this regard cannot be faulted.

8.Under Ex.A2/sale deed dated 28.08.1961, the plaintiff purchased 8 % cents in S.No.1496 and 39 % cents in S.No.1498 from one Chellamma Nadathi. The said Chellamma Nadathi got the said property under Ex.A7, dated 26.03.1960 from one Podiyan Nadar. The said Podiyan Nadar in turn got the property under Ex.A6 from one Velayuthan S/o.Madhavan Pillai. Unfortunately for the plaintiff, the said Velayuthan S/o.Madhavan Pillai, who executed Ex.A6 in favour of Podiyan Nadar figured as first defendant in O.S.No.417 of 1121 (Ex.B38). Final decree was passed in the partition suit on 25.06.1960 (Ex.B22). Delivery was effected on 29.06.1978 (Ex.B29). The allotment made to the parties to the suit in O.S.No.417 of 1121 was set out in a table and it forms part of the sketch annexed to Ex.B22. The scanned copy of the said table is under:

9.From the above, it can be seen that no specific allotment was made to Velayuthan S/o.Madhavan Pillai, who was the vendor in Ex.A6. The subject matter of Ex.A2, is traceable to Ex.A7 which in turn is traceable to Ex.A6 was part of the suit schedule in O.S.No.417 of 1121. The plaintiff’s vendor in Ex.A2 was Chellamma Nadathi. Chellamma Nadathi claimed title from one Podiyan and Podiyan claimed title from Velayuthan S/o.Madhavan Pillai. The said Velayuthan was a party to O.S.No.417 of 1121. Therefore, the outcome of O.S.No.417 of 1121 would obviously bind the plaintiff and operate as res judicata.

10.O.S.No.199 of 1960 on the file of the Principal District Munsif Court, Kuzhithurai was also a suit for partition filed by one Velayutham Pillai S/o.Sankara Pillai and others. In the said suit, Ponnumony Nadar, the plaintiff herein was shown as tenth defendant. In the said suit, the sale deed executed in his favour by Chellamma Nadathi was marked as Ex.B10. The said suit came to be dismissed on 23.10.1961 (Ex.B53). Though the learned counsel for the contesting respondents strongly relied on the said judgment, in my view not much turns on Ex.B53, in view of the following finding therein:-

‘It is found that it is no use marking out the shares of the defendants at this stage when all the necessary items of properties are not included in this suit. Hence, I find under Issues 1 and 2 that the shares of the parties and the manner of partition can be left open to the decided in an appropriate suit in proper forum.’

11.The other document on which the plaintiff anchored his case was Ex.A3 dated 01.07.1963 executed by one Parameswaran Pillai and his brother/ Velayutham Pillai. The vendors under Ex.A3 are the sons of one Ramakrishnan, who got othi from one Mathevan under Ex.A11 dated 28.11.1070 (Malayalam Era). After obtaining othi, Ramakrishnan executed Ex.A5 dated 15.12.1070 (Malayalam Era) and sub-mortgaged in favour of one Karuman Velayuthan. It is not the case of the plaintiff that this sub-mortgage made in favour Karuman Velayuthan was ever redeemed.

12.Admittedly, the transaction was in the nature of othi. Othi is a form of mortgage. Whatever this expression might mean, it has a particular connotation in what is known as the erstwhile Thiruvancore region. The Hon’ble Kerala High Court in the decision reported in AIR 1973 Kerala 270 (Mathew Mathew vs Alexander Muthalali) held that othi is an anomalous possessory mortgage and that the mortgagor is personally liable for the mortgage amount. While usufructuary mortgage does not impose personal liability on the mortgagor, a person who borrows money on othi is personally liable for the amount as in the case of hypothecation bond. In other words, all the elements of hypothecation bond are present in an othi transaction and in addition possession of property secured is given to the mortgagee, so that he may take the profit in lieu of interest. The term ‘othi’ if it occurs in the document implies then it was a mortgage to which all the incidents of othi would have applied and no special covenant for repayment by the mortgagor is necessary. Such being the case, limitation for redemption would start running from the date of mortgage. Therefore, obviously the said sub-mortgage executed by Ramakrishnan in favour of Karuman Velayuthan became time barred. Therefore, executants of Ex.A3 could not have conveyed any right or interest thereunder in favour of the plaintiff/Ponnumony Nadar. In fact, the case of the plaintiff is worsened by the fact that redemption suit filed by him against the legal heirs of Karuman Velayuthan in O.S.No.363 of 1963 came to be dismissed on 31.08.1964 (Ex.B31). Obviously, the said judgment would bind the plaintiff and operate as res judicata in so far as the properties covered under Ex.A3 are concerned.

13.As regards the properties covered under Ex.A4 are concerned, it is obvious that they have not been included in the present suit schedule. The father of the executant of Ex.A4 was a party to the suit in O.S.No.417 of 1121 and Plot No.C in S.No.1496 and Plot No.F in S.No.1498 were allotted to him and hence, he and his legal heirs would have dealt with those properties.

14.The present suit for partition suffers from a fundamental defect. The Hon’ble Supreme Court in the case of Shasidhar & Ors vs Ashwini Uma Mathod & Another in Civil Appeal No.324 of 2015 held as follows:-

’24. We may consider it apposite to state being a well settled principle of law that in a suit filed by a co-sharerer, coparcener, co-owner or joint owner, as the case may be, for partition and separate possession of his/her share qua others, it is necessary for the Court to examine, in the first instance, the nature and character of the properties in suit such as who was the original owner of the suit properties, how and by which source he/she acquired such properties, whether it was his/her selfacquired property or ancestral property, or joint property or coparcenery property in his/her hand and, if so, who are/were the coparceners or joint owners with him/her as the case may be. Secondly, how the devolution of his/her interest in the property took place consequent upon his/her death on surviving members of the family and in what proportion, whether he/she died intestate or left behind any testamentary succession in favour of any family member or outsider to inherit his/her share in properties and if so, its effect. Thirdly whether the properties in suit are capable of being partitioned effectively and if so, in what manner? Lastly, whether all properties are included in the suit and all co-sharerers, coparceners, co- owners or joint-owners, as the case may be, are made parties to the suit? These issues, being material for proper disposal of the partition suit, have to be answered by the Court on the basis of family tree, inter se relations of family members, evidence adduced and the principles of law applicable to the case. (see “Hindu Law” by Mulla 17th Edition, Chapter XVI Partition and Reunion – Mitakshara Law pages 493-547).’

15.The plaintiff must show unity of ownership and possession with the respondents in respect of the suit schedule items. Unless it is demonstrated, there is no cause of action for filing a partition suit. In this case, the defendants have successfully demonstrated that the suit survey numbers were subject matter of earlier partition suit and that allotments were made and that it is not open to the plaintiff to reopen the same. If the appellants want to argue that on the plots allotted to them, the contesting defendants are in occupation, then they should have filed a proper for suit for declaration and recovery of possession or declaration and injunction. Instead of doing so, they have mistakenly filed a suit for partition. That is why, the Courts below held that the outcome of the earlier suit proceedings would operate as res judicata for against the present suit.

16.In this view of the matter, the substantial questions of law are answered against the appellants and the impugned judgment and decree passed by the Courts below are confirmed and the second appeal is dismissed. No costs.