RAGHAVAN NAMBIAR Vs. K. SUMATHI AMMA

JUDGEMENT

(1.) Suit property belonged to deceased Narayani Amma. Her six children are the defendants in OS No. 451 of 1977 and defendants 1 to 5 and plaintiff in OS No. 248 of 1978 on the file of the Munsiff, Quilandy. On 10-1-1972, she executed Ext. B1 will bequeathing the suit property in favour of the fifth defendant. On 24-1-1977, she is alleged to have entered into Ext. A1 agreement with Syamala Devi for the sale of the property. On 14-7-1977, Narayani Amma gifted the property to the fifth defendant under Ext. B8. OS No. 451 of 1977 was filed by Syamala Devi against the six children of Narayani Amma for specific performance of Ext. A1 agreement. All the defendants opposed the claim. Defendants 1, 3 and 5 based their claim on Exts. B1 and B8 also. OS No. 248 of 1978 was filed by Sumathi Amma (sixth defendant in OS No. 451 of 1977) against defendants 1 to 5 in OS No. 451 of 1977 as defendants 1 to 5 and plaintiff in. OS No. 451 of 1977 as sixth defendant for partition and recovery of her share avoiding Exts. A1, B1 and B8. Genuineness and enforceability of these documents were among the moot points in both the cases, which are interparties.

(2.) Both the suits were jointly tried and disposed of by a common judgment. OS No. 451 of 1977 was decreed for specific performance of Ext. A1 and for that reason, OS No. 248 of 1978 was dismissed. In both the cases, Exts. B1 and B8 were found invalid and set aside. Three appeals were filed before the Subordinate Judge, Vadakara. AS No. 88 of 1982 was filed by defendants 1, 3 and 5 against the decree for specific performance in OS No. 451 of 1977. AS No. 104 of 1982 was also filed by them challenging the finding in OS No. 248 of 1978 that Exts. B1 and 8 are invalid documents liable to be set aside. AS No. 101 of 1982 was filed by the plaintiff in OS No. 248 of 1978 against the dismissal of that suit. All the three appeals were heard together and disposed of by a common judgment. AS No. 88 of 1982 was allowed and OS No. 451 of 1977 filed for specific performance was dismissed holding that Exts. A1, B1 and B8 are all invalid documents. Exts. B1 and B8 were set aside. AS No. 101 of 1982 was allowed and the dismissal of OS No. 248 of 1978 was set aside. A preliminary decree for partition was passed in that case on the finding that Exts. A1, B1 and B8 are all invalid documents. Exts. B1 and 8 were set aside. AS No. 104 of 1982 was dismissed confirming the findings against the validity of Exts. B1 and 8. Thus all the three judgments uniformly invalidated Exts. B1 and 8 with all the parties on the array.

(3.) The decision in AS No. 88 of 1982 dismissing the specific performance suit, OS No. 451 of 1977, invalidating Exts. A1, B1 and B8 was challenged by the plaintiff in that case in SA No. 83 of 1986 before this court with all other parties as respondents. That second appeal was dismissed as out of time. Nobody else challenged the decision in AS No. 88 of 1982. That decision setting aside Exts. B1 and 8 has become final. The present second appeal filed by defendants 1, 3 and 5 is only against the preliminary decree for partition passed by the appellate court in AS No. 101 of 1982 in reversal of the dismissal of OS No. 248 of 1978 setting aside Exts. B1 and 8. The decision in AS No. 104 of 1982 was not challenged by anybody.