JAMEELA BEEVI Vs. BASHEER

JUDGEMENT

(1.) Plaintiff is the appellant. The appeal is directed against the judgment and decree in O.S.No. 105/1986 on the file of the Additional Sub Court, Irinjalakuda. Suit was filed for setting aside Ext.A2 sale dated 9.12.1974, partition and separate possession of 1/6" share and for share of profits and costs. The trial court dismissed the suit with costs. Parties hereinafter are referred to as the plaintiff and defendants as arrayed in the suit. Plaintiff is claiming share in the plaint schedule property as one of the legal heirs of Bavunni. Bavunni died on 31.3.1982. Defendants 1 to 4 are the other children of Bavunni and the 5th defendant is the wife of Bavunni. The 6th defendant is the brother of Bavunni.

(2.) The 6th defendant in the written statement contended that right of the plaintiff in the plaint schedule property was assigned to him and he purchased the same for value and in good faith. Ext.A2 is the sale deed executed by the plaintiff in favour of the 6th defendant. According to the 6th defendant, the plaintiff is not entitled to any share on Bavunni's death since she released her share in favour of the 6th defendant. It is pleaded in the written statement that the plaintiff, while residing with her husband, wanted to sell her right in the property owned by her father, that she approached Bavunni and 6th defendant, who is the brother of Bavunni and expressed her willingness to release the right for value to be received. The value of her share was fixed after negotiation and out of the value fixed, one half of the amount was utilised by the plaintiff for purchasing the property covered by Ext.B1 sale deed. The other half amount was utilised for her personal use. Subsequently, all the sharers in the plaint schedule property had executed a partition deed as document No. 1252/1985 dividing the properties between the other sharers. The 6th defendant also contended that the suit for cencellation of the document of sale deed is barred by law of limitation. It is pleaded in the plaint that the 6th defendant who is her paternal uncle has tremendous influence over her, that during the lifetime of Bavunni, the 6th defendant had taken advantage of the influence on her managed to get Ext.A2 sale deed purporting to be a sale deed to the effect that she has assigned her rights over the property to him. It is pleaded that at the time of execution of Ext.A2 sale deed, the plaintiff had no right over the properties owned by her father being spes successions, she has no transferable right. In substance, the plaintiff contended that Ext.A2 sale deed was executed under coercion and influence. The recitals in Ext.A2 sale deed reads that there are 14 items of properties. The 1st nine items were inherited by Bavunni and 6th defendant from their mother, Beevachu, items 10 & 11 were purchased out of the profits from those properties and items 12 to 14 were inherited by Bavunni and 6th defendant on the death of Beevathu. The recitals further reads that the plaintiff, defendants 1 to 4 and Bavunni are all had rights in the said properties. By Ext.A2 sale deed rights of the plaintiff in the plaint schedule properties were assigned to the 6th defendant for a consideration of Rs. 1,000/-. plaint schedule properties are the 14 items referred to in Ext.A2 sale deed. Out of Rs. l,000/-received by the plaintiff as consideration of Ext.A2 sale deed, Rs. 500/- was paid for enabling the plaintiff to purchase the property covered by Ext.B1 sale deed. The plaintiff purchased Ext.B1 property on 22.3.1974 by utilising Rs. 500/- received from the 6th defendant. Subsequently, Ext.A2 sale deed was executed by her on 9.12.1974 in favour of the 6th defendant. On the date of execution of Ext.A2, balance Rs. 500/- was received by cash. Ext.B1 assignment deed was executed in March, 1974 and subsequently executed Ext.A2 sale deed during December, 1974. Ext.A2 sale deed was executed about three years after her marriage, at a time when she was residing along with her husband.

(3.) As per Ext.B1 sale deed, she purchased 1 acre of property. The plaintiff testified before the court as P.W. 1 that after assigning Ext.A2 sale deed she informed her mother, brothers and sisters about the execution. The suit was brought up in the year 1986, about 11 years thereafter.