K V KRISHNA VENI Vs. K K RAJAGOPAL

JUDGEMENT

(1.) Appellants are defendants 1, 3 and 4 in O.S.No. 19 of 1978 on the file of the Court of Subordinate Judge of Kozhikode.

(2.) The suit was filed for partition and separate allotment of the plaintiffs' share. Plaintiffs and defendants 1 to 6 are Thiyyas. Plaint B schedule property belonged to one Janaki, who is the grandmother of plaintiffs and defendants 1 to 6. Kamalakshi and Meenakshi are daughters of Janaki. Plaintiffs and defendants 5 and 6 are children of Kamalakshi. Defendants 1 to 4 are the children of Meenakshi. 7th defendant is an assignee of a portion of the plaint schedule property. On 7-1-1941, Janaki executed a Will evidenced by Ext. A1 bequeathing A schedule property therein to Krishnan and Madhavan, who are her sons and Kousalya, who is the daughter of Meenakshi and B schedule property to Meenakshi and Kamalakshi. Kamalakshi pre-deceased Janaki leaving plaintiffs and defendants 5 and 6 and deceased Sikandar and Krishnakumar as legal heirs. Janaki died in 1948. Half share in B schedule property which Kamalakshi would have got had she survived Janaki, devolved on the plaintiffs, defendants 5 and 6, Sikandar and Krishnakumar. Meenakshi died in 1957. Her half right in the B schedule property devolved on her children who are defendants 1 to 4. Sikandar died in 1971 and Krishnakumar died in 1974. Defendants 1 to 4 sold out 3 cents of B schedule property to the 7th defendant and it was not binding on the plaintiffs and defendants 5 and 6. Calicut Municipal Corporation acquired 2.57 cents and defendants 1 to 4 received the entire compensation without the knowledge of the plaintiffs and defendants 5 and 6. They are entitled to half the amount of compensation. In 1974, defendants 1 to 4 executed a partition deed and effected a division of B schedule property. The 1st defendant sold out a portion of the property to defendants 8 and 9. The 2nd defendant sold out portion of the property to the 10th defendant. The partition deed and subsequent sale deeds are fraudulent documents and were executed without the knowledge of the plaintiffs and defendants 5 and 6 and they were not binding on them. Inspite of demand made by the plaintiffs, defendants 1 to 4 were not amenable to make a division of the property and hence the suit.

(3.) Defendants 1, 2 and 4 filed a joint written statement admitting execution of the Will by Janaki, but contending that since Kamalakshi died during the life time of Janaki, bequest in favour of Kamalakshi was lapsed and whatever right Kamalakshi would have had under the Will in the B schedule property devolved on Meenakshi and that in the circumstances, plaintiffs and defendants 5 and 6 had no right to the plaint B schedule property.