KRISHNAN NAMBOODIRI Vs. UNNI MAYA ALIAS UMA DEVI

JUDGEMENT

(1.) This Second Appeal is filed by the first defendant in a suit for partition. After his death, pending the Second Appeal, his legal heirs have come on record. The plaint schedule property admittedly belonged to Nangu Neeli Antharjanam. The plaintiff and defendants 1 to 3 are the children of Nangu Neeli Antharjanam. The plaintiff claimed th right as the legal heir of Nangu Neeli Antharjanam. The contention of the 1st defendant, who is the son of Nangu Neeli Antharjanam, was that the plaintiff had executed a release deed surrendering of her rights to the first defendant. It is also contended that all other sisters had executed similar release deeds and the first defendant is the sole owner of the property. The only difference in the case of the plaintiff is that the document was not registered, though signed by the plaintiff. The plaintiff has also executed a power - of - attorney and that power of attorney was registered. The power - of - attorney could not present the document for registration.

(2.) In the Trial Court, the contention of the 1st defendant was that after the execution of Exts.B1 and B2, the 1st defendant was acting as exclusive owner of the property. Therefore the rights of the plaintiff is barred by adverse possession and limitation. The Trial Court found that Exts.B1 and B2 were signed by the plaintiff. But the Trial Court also found that the 1st defendant could not establish adverse possession by any acceptable evidence. The Trial Court therefore granted a decree for partition of th right to the plaintiff in the plaint schedule property. It was also found that she is entitled for mesne profits.

(3.) Aggrieved by the Judgment of the Trial Court, the 1st defendant filed A.S. No.223 of 1985 before the Sub Court, Kozhikode. The same was heard along with A.S. No.222 of 1985 which was filed by the third defendant who had also claimed the share as the plaintiff and whose contentions were found against as her document was registered. Before the lower appellate Court, the 1st defendant filed an application for amendment of the written statement to incorporate a plea to the effect that he is entitled to protection under S.53A of the Transfer of Property Act. The lower appellate Court dismissed the application for amendment and the appeal filed by the third defendant as well as the appeal filed by the 1st defendant. The contention of the plaintiff that her name is Uma Devi and not Unni Maya and the document was executed by Unni Maya was found against by the lower appellate Court also. The lower appellate Court found that since Ext.B1 was not registered and it was required to be registered under law, no rights passed to the 1st defendant under that document. The plea of ouster and adverse possession by the 1st defendant was also found against.