ALEY OUSEPH Vs. OUSEPH MONI

JUDGEMENT

(1.) 1st defendant in O.S. No. 27 of 1978 on the file of the Court of Subordinate Judge, Thodupuzha, is the appellant. Suit was for recovery of the plaint A schedule property with past and future mesne profits and for a declaration that document No. 1034 of 1972 of the Karikode Sub Registry Office, is void and not binding on the plaintiffs or the property.

(2.) Plaintiffs are children of Devassia Ouseph. Devassia Ouseph died on 8th November 1967 and his wife Thressia, the mother of the plaintiffs died on 23rd August 1969. Plaint schedule property belonged to Kora Devassia and his wife Moni on the strength of the joint purchase made by them as per Ext. B-2, dated 20th April 1964. The aforesaid Devassia Joseph is the son of Kora Devassia and Moni. Kora Devassia died and his wife Moni died on 23rd May 1972. 1st defendant is the daughter of Kora Devassia and sister of Devassia Joseph. 2nd defendant is her husband and 3rd defendant is her son. Kora Devassia and Moni executed a Will, dated 18th January 1965 evidenced by Ext. A-1. As per Ext. A-1 the property was bequeathed to Devassia Joseph. The Will was to take effect after the death of both the testators. According to the terms of Ext. A-1, during the lifetime of Kora Devassia, he was at liberty to alter the provisions of the Will and after his death his wife Moni was entitled to make alterations to the Will. After the death of Kora Devassia, Moni and Devassia Joseph jointly executed a gift deed and sale in favour of Devassia's wife Thressia and her minor children. Subsequently, Moni executed Ext. B-3, dated 15th April 1972 in favour of the 1st defendant. It is recited in Ext. B-3 that she was in exclusive possession of the property under the registered Will executed in 1965. It is the plaintiffs case, that since the property was disposed of by Moni and Devassia Joseph under Ext. A-2, Moni had no subsisting right to execute Ext. B-3 in favour of the 1st defendant and that document is void. Plaintiff's traced title to Ext. A-1 Will and Ext- A-2 sale and gift and sought for recovery of possession of the property on the strength of these documents, declaring that Ext. P-3 is void and inoperative.

(3.) 1st defendant filed a written statement admitting the relationship of the parties. She also admitted that the Will was executed by Kora Devassia and Moni in 1965 and the scheme of the Will was that the properties described therein would devolve upon Devassia Joseph after their death. The extent of the property so bequeathed was only 4 acres and 25 cents. She further averred that the plaintiffs' father died long before the death of Moni, that Moni disposed of 4 acres and 65 cents of land by executing Ext. P-3 sale deed and that therefore neither the legatee Devassia Joseph nor his legal representatives who are plaintiffs 1 and 2 obtained any right over the property. It was also contended that Ext. A-2 document was a sham transaction and it was not acted upon.