JANAKI AMMA Vs. RAVEENDRA MENON

JUDGEMENT

(1.) A. S. No. 121 of 197G is against O. S. No. 90 of 1970 and A. S. No. 88 of 1977 is against O. S. No. 123 of 1971 on the file of the Sub Court, Ernakulam. Both the suits were jointly tried and there is a common judgment by the lower court O. S. No. 90 of 1970 is treated as the main suit and evidence was led in that suit. Defendants 3 and 4 in O. S. No. 90 of 1970 are the appellants in A. S. No. 121 of 1976. The suit is to set aside a document of partition marked as Ext A1 dated 23-4-1962 executed by the plaintiff and defendants 1 to 4 on the ground of fraud, and for a fresh partition of the suit property. The 1st defendant is the mother of the plaintiff and defendants 2 to 4. The plaintiff and the 2nd defendant are the sons of the 1st defendant in her first husband Narayana Menon. Defendants 3 and 4 are the children of the 1st defendant in her second husband Krishna Pillai. The suit property belonged to one Govinda Panicker, a stepbrother of the first defendant. He executed a will Ext. B7 on 21-4-1117. (Ext. A2 is a registration copy of Ext. B7). As per this will Kunchi Amma, the mother of the first defendant and the first defendant were to enjoy the property and take its income during the lifetime of Kunchi Amma and on her death the property was to devolve on the first defendant and her children. Govinda Panicker died on 25-4-1117 and Kunchi Amma, the mother of the first defendant, died on 5-5-1118. Hence according to the terms of the will the property devolved on the first defendant and her children on the death of Kunchi Amma on 5-5-1118. It is admitted by both parties that the plaintiff and the second defendant were the only children of the first defendant alive at the time of the death of Govinda Panicker and Kunchi Amma. Defendants 3 and 4 are children born to the first defendant after the death of Govinda Panicker and Kunchi Amma.

(2.) The total extent of the property bequeathed as per Ext. B7 was 1.40 acres, out of which 44 1/2 cents were acquired by the Government for the purpose of the National Highway. On the basis that the property belongs to the plaintiff and defendants 1 to 4, the plaintiff received a 1/5th share of the compensation awarded by the Land Acquisition Officer as per Ext. A10 Award. Ext. B8 dated 12-3-1962 is the receipt passed by the plaintiff for having received the 1/5th share of compensation for the land acquired. There was a reference as per Ext. A5 for enhancement of compensation to the Sub Court, Ernakulam. Compensation was enhanced as per the decree in L. A. No. III of 1963. The plaintiff received a 1/5th share of the enhanced compensation also and passed Ext. B9 receipt on 9-4-1969. Defendants 3 and 4 were minors on the date of Ext. A10 award. Their 2/5th share of compensation was received on the execution of a security bond Ext. B6 dated 24-3-1962 by the plaintiff and defendants 1 and 2. Ext. B6 specifically states that the property is the subject of bequest as per Ext. B7 will of Govinda Panicker and on the death of Govinda Panicker and Kunchi Amma the property devolved on the plaintiff and defendants 1 to 4 in absolute rights. The document authorises the first defendant to receive the 2/5th share of compensation due to the minors, defendants 3 and 4, on the security of the 3/5th undivided share of the plaintiff and defendants 1 and 2 in the remaining 95 1/2 cents of property. Thereafter Ext. A1 partition is entered into by the plaintiff and defendants 1 to 4, as per which the plaintiff is allotted 1-7 cents of land towards his 1/5th share in the property. Ext. A1 also recites the devolution of the property on the plaintiff and defendants 1 to 4 as per Ext. B7 will of Govinda Panicker. As per this document the plaintiff is given his 1/5th share as per the second schedule and the remaining extent of the property is allotted to the Sakha of defendants 1 to 4 as per the first schedule to the document Ext. A1. It is admitted that the plaintiff obtained separate possession of the 17 cents of land allotted to him as per the partition. He assigned a portion of the property, a little over 6 cents in extent, to a stranger as per Ext. B11 dated 26-3-1968. This document recites the partition deed Ext. A1, as per which the plaintiff obtained title and possession of the property which is the subject of sale under Ext. B11. Defendants 1 to 4 had already assigned an extent of 10 cents of land out of the 78 1/2 cents of land allotted to them as per Ext. A1 to the assignee under Ext. B11 as per Ext. B12 sale deed dated 16-8-1965. The defendants also assigned 4 cents of land each to two kudikidappukars in the property as per Exts. B21 and B22 dated 21-7-1970. It is after all these transactions had taken place that the plaintiff filed the present suit to set aside Ext. A1 partition and for a decree for partition of the property which is the subject matter of bequest under Ext. B7 will. The present suit is filed on 3-9-1970, more than eight years after Ext. A1 partition. According to the plaintiff, defendants 3 and 4 who were not born on the date of death of Kunchi Amma, had no right in the property, that the plaintiff was not aware of the terms of the will Ext. B7 that defendants 1 and 2 had fraudulently represented to the plaintiff that defendants 3 and 4 are also entitled to the property which is the subject of bequest under Ext. B7 that the plaintiff believed in the representation of his mother and brother, that it is on the basis of the said representation that he executed the partition deed Ext. A1, and that he came to know about the fraud only in July - August, 1970 when the second defendant had made a demand to the first defendant for partition of a half share in the property jointly allotted to defendants 1 to 4 as per Ext. A1 partition. The suit is contested by defendants 1, 3 and 4, The second defendant supports the plaintiff. The first defendant had as per Ext. B27 sale deed dated 1-9-1970 assigned her 1/4th share in the property allotted to the group of defendants 1 to 4 as per Ext. A1 to defendants 3 and 4. The contesting defendants deny the allegation of fraud. According to them, as per the will Ext. B7 the property devolved on the tavazhi of the first defendant and her children in accordance with marumakkathayam law and that defendants 3 and 4, even though born subsequently, are also entitled to an equal share in the property as any other member of the family, that the property was treated as tavazhi property, the allotment as per Ext. A1 itself was to the Sakha of defendants 1 to 4, that the parties understood the bequest as per Ext. B7 as in favour of the tavazhi of the first defendant and her descendants, that the plaintiff was fully aware of the terms of the will and he had executed Ext. A1 partition in full awareness of the rights of parties in the suit property, that he has also received his share of compensation in respect of a portion of the property acquired by the Government and that he had also received his share of the enhanced compensation awarded by the Sub Court, Ernakulam in L. A. No. 111 of 1963. The various other transactions by the parties were also on the basis that the property devolved on the tavazhi of the first defendant and her children as per the will Ext. B7. The contesting defendants also deny the plaint allegation that the plaintiff came to know about the terms of the will only in 1970 and contend that the suit is barred by limitation.

(3.) The assignees of portions of the property as per Exts. B11, B12, B21 and B22 are not parties to the suit. The plaintiff however requires the 17 cents of land allotted to him as per Ext. A1 partition to be included in the 1/3rd share that may be allotted to him after setting aside Ext. A1 partition so that it is not necessary to implead the assignees under the various documents aforesaid.