GOVINDANKUTTY NAIR Vs. RADHAMMA AMMA

JUDGEMENT

(1.) PLAINTIFF in O.S.309 of 1997 on the file of Munsiff Court, Vadakkanchery is the appellant. Respondents are the defendants. Suit was filed for a declaration that plaint schedule properties were jointly acquired by the appellant and deceased Achuthan Nair and respondents 1 to 4 alone are not entitled to alienate the property and for a further declaration that assignment deed 1321 of 1997 executed by respondents 1 to 4 is not valid and binding on the appellant or the plaint schedule properties and for a permanent prohibitory injunction restraining the 5th respondent assignee from trespassing into the plaint schedule property and for a permanent prohibitory injunction restraining respondents 1 to 4 from transferring item Nos. 2 and 3 of the plaint schedule property. In the plaint it was contended that he and deceased Achuthan Nair were members of Perugottukurissi Puthenveed tarawad. Achuthan Nair was working in Military and retired in 1997. Achuthan Nair, his uncles Madhavankutty Nair and Krishnankutty Nair and appellant had jointly owned 12.73 = acres of land in Thiruvilwamala Village purchased under Ext.A1/B1 registered sale deed 566/1969. Subsequently Madhavankutty Nair and Krishnankutty Nair released their right in favour of the appellant and Achuthan Nair under Ext.A2, and A3/B3 and B4 released deeds. Thus appellant and Achuthan Nair alone have right over the said property. While so, for the purpose of preparing the seedlings for paddy cultivation in those properties, the plaint schedule properties were purchased under Ext.A4/B2 egistered sale deed 97/1972 in the name of Achuthan Nair. Achuthan Nair died on 10.2.1997. Appellant would contend that as the properties were purchased for the cultivation of the properties jointly owned and Ext.A1 A3, he is having equal right to the property. Thereafter plaint schedule properties are in the possession and enjoyment of the appellant. It was contended that when he had gone to item No.1 of the plaint schedule properties, he was prevented by husband of the fifth respondent and on enquiry it was found that respondents 1 to 4 assigned in favour of fifth respondent under registered assignment deed 1321/97 and the said sale deed will not affect his rights. Appellant sought a declaration that it is not binding on the appellant or the plaint schedule properties. It was also contended that respondents 1 to 4 are attempting to alienate item Nos.2 to 4 of the plaint schedule properties and they have no right to alienate and sought a decree for injunction restraining alienation.

(2.) RESPONDENTS 1 to 4 resisted the suit contending that plaint schedule properties belonged to Late Achuthan Nair and on his death, it devolved on his legal heirs and appellant has no right or title to the property. It was contended that for consideration of Rs.5000/- received from 5th respondent, item No.1 of the plaint schedule property was assigned in favour of 5th respondent and in fact out of the sale consideration, Rs.20,000/- was received by Achuthan Nair earlier and 5th respondent was put in possession of the property and as Achuthan Nair bequeathed his entire properties under registered will dated 8.12.1998 in favour of respondents 1 to 4, the entire properties devolved on respondents 1 to 4 and they are entitled to assign the property and appellant is not entitled to challenge it. Fifth respondent in his written statement reiterated the contentions raised by the other respondents and contended that during the life time of Achuthan Nair an agreement for sale was entered into and later the properties were assigned in his favour and therefore appellant is not entitled to the decree sought for. A counter claim was preferred by respondents 1 to 4 in respect of 13 items of properties out of which item Nos. 1 and 2 are the same, viz, item Nos.2 and 3 of the plaint schedule properties.

(3.) LEARNED counsel appearing for appellant and respondents were heard.