ESSAKKYAL NADAR Vs. SREEDHARAN BABU

JUDGEMENT

(1.) Second defendant in O. S. 390 of 1976 of the Munsiff's Court, Neyyattinkara is the appellant. Plaintiffs 1 to 3 filed the suit originally for declaration and partition. Subsequently it was amended for recovery of possession of plaintiff's share also. The trial Court held that plaintiffs are entitled to recover possession of half share of the plaint schedule property with mesne profits. This finding has been confirmed by the Sub-Judge, Trivandrum. While confirming the preliminary decree the second defendant was allowed reimbursement of Rs. 100/- spent by him for taking Ext.B6 release deed.

(2.) The property originally belonged to Kumaran Panicker who gifted the same in 1123 M.E. to his children viz., plaintiff's mother, first defendant, Kamalakshi, and Bhavani. Plaintiffs' mother purchased 1/4 share of the first defendant. She thus became entitled to half share in the property. Second defendant purchased the rights of Kamalakshi and Bhavani and obtained half right in the property. Third defendant who is the sister of the plaintiffs' mother executed a document in favour of the second defendant assigning rights of the plaintiffs in the property. This is challenged by the plaintiffs on the ground that the third defendant had no right to do so she being not their natural guardian or guardian appointed by the Court.

(3.) Contention of the second defendant is that plaintiffs' father went to Kanyakumari District as a labourer in a rubber estate and since then he neglected his children and the third defendant acting as their guardian was well within her right in executing the assignment deed especially when an alternative plot was acquired by her in their favour. Learned counsel for the plaintiffs contended that the assignment made by the third defendant in favour of the second defendant is void ab initio and merely on the ground that another property was acquired by the third defendant in favour of the plaintiffs it cannot improve the position so far as they are concerned. That apart, there is no evidence of acquisition of any alternative site in favour of plaintiffs and even if there was any acquisition it would not validate the void document.