AMMINI KURUVILA Vs. KUNJUMOL CHARLY

JUDGEMENT

(1.) A suit for partition was dismissed by the trial court on the ground that Ext.A3 gift deed and Ext.A4 sale deed are invalid. Ext.A4 sale deed is of the year 1981 (9.7.1981) and the prior document, Ext.A3 gift deed is of the year 1969 (29.12.1969). The plaintiffs claims that their predecessor-in-interest Annamma Paulose obtained the property by virtue of Ext.A4 sale deed based on an earlier document of gift, Ext.A3. The contention of the defendants is that Ext.A3 gift deed is ab initio void and never came into effect and as such, the sale deed executed based on Ext.A3 gift deed has no legal validity.

(2.) Indisputably, no suit for setting aside Ext.A3 gift deed and subsequent sale deed was filed at any point of time within the period of limitation or till date. Even in the present suit, no counter claim was raised for any relief of declaration, except a contention that Ext.A3 gift deed is invalid and not came into effect due to non-compliance of requirement of attestation by two witnesses as mandated under Sec. 123 of the Transfer of Property Act.

(3.) The trial court accepted the contention raised by the defendants and found that both Exts.A3 gift deed and Ext.A4 sale deed are invalid and dismissed the suit for partition without a counter claim for the said relief, that too, overlooking the period of limitation. The first appellate court went along with the trial court and committed the very same mistake and found that there is no valid gift deed as claimed under Ext.A3 and as such, the subsequent sale under Ext.A4 is also invalid, but remanded the case back to the trial court to address the genuineness of Ext.B8 Will of the year 1983, against which the plaintiffs came up in appeal. The essential questions came up for consideration are: