PATHU Vs. KATHEESA UMMA

JUDGEMENT

(1.) Deceased Mohammedkutty married five ladies in succession. We are concerned only with two among them, first plaintiff and first defendant. In the first plaintiff, he left 12 children, who are plaintiffs 2 to 13 and in the first defendant seven, defendants 2 to 8, totalling 19. This suit for partition involves only one item. It is B schedule over which first defendant had a kanom right. She is alleged to have sold her kanom right to her husband under the original of Ext A1 on 16-10-1943 pursuant to which he purchased the jenmom right under Ext. A2 on 8-8-1951. Alleging that Mohammedkutty was in possession of the suit property as full owner when he died, the plaintiffs claimed their share. First defendant denied execution of Ext. A1 and, in the alternative, pleaded limitation and adverse possession. Defendants 2 to 6 supported her. Defendants 3 and 4 in addition claimed special right over some constructions. Trial Court dismissed the suit finding that execution of Ext. A1 is not proved. Hence the plea of adverse possession was not considered. That is how the plaintiffs came up in appeal.

(2.) No attesting witness to Ext. A1 is alive and available for ; examination. PW 2 is the scribe and stamp vendor. He could not swear to execution or attestation. He said that the stamp was supplied and the document written by him. The document is a registered one. The impression of the left thumb of the first defendant was taken in court and it was compared by an expert with the thumb impression contained in the register kept in the Sub- 'Registrar's office for having registered the original of Ext. A1 which is not available. PW 4 is the expert. In Ext. Cl opinion and in the court he said that both impressions are of the same thumb. Not only that the trial Judge was not convinced by these items of evidence, but he is also of opinion that even if these items of evidence are accepted, they are not sufficient to show that she consciously affixed her thumb impression knowing and understanding the contents of the document and no vitiating factor was played on her. Without any contention from the first defendant, the trial Judge assumed her to be a purdanashin or illiterate lady on whom fraud or misrepresentation might have been played and the burden in that connection was not discharged.

(3.) There is the evidence of the fourth plaintiff as PW 1 regarding possession. There is the admission of the first defendant in the box that till his death Mohammed Kutty lived with her and he died at her residence. Ext. A1 was in 1943. In 1951, Mohammedkutty took Ext. A2 sale of the jenmom right from the wife of PW 3 mentioning his right and possession under Ext. A1. During his life time, there is no evidence of any dispute regarding right over the property. He had no reason to play any fraud on his wife. These factors coupled with registration and proof of thumb impression are normally more than sufficient to establish execution. Courts should not overlook probabilities and assume contentions not taken up by parties.