MOHAMMED Vs. ARIF

JUDGEMENT

(1.) CHALLENGING the judgment and decree in O. S. No. 13/1990 on the file of the Sub Court , Lakshadweep ,Kavaratti Island , this appeal is preferred by defendants 1 to 7. The plaintiff filed the suit for declaration and cancellation of Ext. Al gift deed. The case of the plaintiff is that the plaint schedule property belonged to the plaintiff and defendants 1 and 8 to 12 , who are members of Kakkethi tharwad. The tharwad was never partitioned. The tharwad properties cannot be partitioned without the consent of all the members of the tharwad. Defendants 2 to 7 are the wife and children of the first defendant. The 11th defendant is the mother of the minor plaintiff. Since she failed to protect the interest of the minor plaintiff, the suit is filed through the father of the minor. The first defendant in order to defeat the interest of the tharwad has executed Ext. Al gift deed in favour of defendants 2 to 7, who are the wife and children of 1st defendant. The 10th defendant filed suit, O. S. No. 7/80 before the Sub Court , Lakshadweep ,Kavaratti Island for cancellation of the document. The present plaintiff was not a party to the said suit. This first defendant is not competent to execute the sale deed in favour of defendants 2 to 7. O. S. No. 7/80 was dismissed for default on 22. 9. 1990. The plaintiff in the said suit including the defendants did not prosecute the suit. The suit properties are being Kakkethi tharwad properties under the customary law of the Island , the property cannot be divided or alienated without the consent of all the members of the tharwad. Hence, the suit is filed for declaration that document No. 1/76 executed by the first defendant in favour of his wife and children as not valid and binding and for declaration that the plaint schedule properties are the Kakkethi tharwad properties.

(2.) DEFENDANTS 1 to 7 filed a joint written statement contending that the suit properties are not the tharwad properties as alleged in the plaint. The allegation that the properties were not partitioned absolutely also is not correct. The plaint schedule properties were enjoyed as ' Puthravakasam ' thavazhy property along with other properties. But for the love and affection of the first defendant towards his sister Saina , she was also given right in the property. The first defendant and mother of defendants 8 to 11, Saina , got the properties partitioned as per the decree in O. S. No. 127/69 of the Munsiff's Court, Androth. As per the final decree passed in I. A. No. 92/71 'a' schedule therein was allotted to the first defendant and B schedule was allotted to late Saina. Accordingly, they were enjoying and possessing the properties separately by effecting improvements. After the death of Saina , her properties devolved on the members of her thavazhy including the plaintiff and defendants 8 to 12. After the division in O. S. No. 127/69, the properties never been enjoyed jointly and never considered as a joint family properties. The properties were enjoyed under the special custom of Kalpeni Island . The first defendant is competent to execute any document as he like. The gift deed was executed in favour of defendants 2 to 7 with the knowledge of defendants 8 to 11. After the execution of Ext. Al, the properties are possessed and enjoyed by defendants 2 to 7. Even if the plaintiffs and defendants 8 to 12 were having any right in the property, it was lost by adverse possession. The plaintiffs have no right to claim any right in the property. DEFENDANTS 8 to 11 were alive at the time of O. S. No. 127/69 and they were aware of the suit. But Saina , the mother of defendants 8 to 11 never wanted to implead them as parties in the said suit. The decision on the said suit is binding on defendants 8 to 11 also. The 10th defendant filed O. S. No. 7/90 claiming the same relief as the plaintiff claims in the suit. But it was abandoned knowing that defendants 1 to 7 are entitled for the property and so the suit was dismissed. It was not appealed against by the plaintiff therein or by any defendants therein. There is no collusion between the plaintiff and defendants 8 to 11. The suit is filed without any bona fides. The claim for cancellation of the document is barred by Art. 59 of the Limitation Act. The suit is liable to be dismissed.

(3.) SO the defendant is estopped from contending against the said judgment. The defendant therein was Kakkethi Saina. In Ext. A3 judgment it was specifically found that the suit property is the tharwad property and the plaintiff therein, who is the first defendant in the suit is not entitled to alienate the section allotted to him on partition without the consent of the defendant's thavazhy. It is also clear from the judgment that after the death of the plaintiff therein the property will have to go to the defendant's ( Saina's ) thavazhy. Hence the contention of the defendant that the tharwad has been attained a status of division cannot be accepted and the 1st defendant herein is not competent to alienate the tharwad property. It is concluded by the judgmentthat the plaint schedule property belongs to Kakkethi tharwad. SO the contention that it is Puthravakasam ' property cannot be accepted. The first defendant has no case that the plaintiff and defendants 8 to 12 are not members of Kakkethi tharwad. The plaintiff is the son of the 11th defendant.The evidence in the case shows that Kadeesumm a have two children.The first defendant and late Sain a. Defendants 8 to 11 are the children of late Saina and 12th defendant is the son of 8th defendant Kadeesa. If it istharwad property as per the law followed by the parties, the members of thetharwad are entitled to the property. The defendants have no case that the gift deed was executed in favour of his wife and children with the consent of all the members of Kakkethi tharwad. Even if the property was partitioned as per the final decree in O. S. No. 127/69, the first defendant got only a right of enjoyment during his lifetime which can be seen from the judgment itself. Ext. A5 is a ' Sammathapath am' executed in 1952 before the Kalpeni Sub registrar's Office. The parties in the document are Kakkethi Rabiyomma , Saina and mohammed. Mohammed is the 1st defendant and late Saina is the mother of defendants 8 to 11. The recital in the document shows that the property' Vadakkupandaram ' land was given to Rabiyomma. Sain a and Mohammed as ' Vasiyath ' of late Melaillam Abdulhaji. Two items described in Ext. A5 are converted into tharwad property. Since the first defendant is a party to Ext. A5, he cannot contend that the plaint schedule property is not a tharwad property. Even otherwise the 1st defendant is bound by Ext. A3 judgment. A perusal of Ext. A3 would show that Saina contended that the property is tharwad property and the property is not liable to be partitioned. After taking evidence, the court found that the plaint schedule in O. S. No. 127/69 is the tharwad property and no right of alienation was given to the first defendant in respect of the property which was allotted to him in the said suit. Ext. Al gift deed was executed in violation of Ext. A3. The nature and character of the property is concluded by the decision in O. S. No. 127/69. SO the document executed by the first defendant in favour of his wife and children without the consent of the other members of Kakkethi tharwad is void abinitio. The first defendant has no alienable right in the property. Admittedly defendants 2 to 7 are not the members of Kakkethi tharwad.