JAYAMMA AND ORS Vs. LAILA AND ORS

JUDGEMENT

(1.) Petitioners are the respondents in R.S.A.975/2004 who are the defendants in O.S.448/1993 before Additional Munsiff Court, Kottayam. Petition is filed under Order 47 Rule 1 of Code of Civil Procedure to review the judgment in S.A.975/2004 dated 28.9.2011.

(2.) Learned counsel appearing for the petitioners and the learned counsel appearing for the respondents were heard.

(3.) The argument of the learned counsel appearing for the petitioners is that though Ext.A1 settlement deed was executed by the first defendant, who is the mother of the first petitioner/second defendant in favour of Sumathi her daughter in her first marriage, the property was obtained by Kunjan, the father of the first petitioner her second husband and though the assignment of the property by the estate was in the name of the first defendant, she did not derive any absolute or special right over the same and much earlier to the execution of Ext.A1 settlement deed by the first defendant Ext.B8 will was executed by Kunjan and hence on his death the property devolved on the petitioners and therefore the benefit of the assignment by the Estate owners in favour of the first defendant should enure to the benefit of petitioners 1 and 2 as that assignment was pursuant to an agreement between Kunjan and the estate owners. It is argued that unfortunately this aspect was not brought to the notice of the courts below or before this court when the Second Appeal was heard and in such circumstances petitioners are to be permitted to plead and adduce evidence on that aspect and in such circumstances the judgment in the Second Appeal is to be reviewed. Learned counsel relied on the decision of the Supreme Court in Soni Lalji Jetha v. Soni Kalidas Devchand, 1967 AIR(SC) 978 and Bai Dosabai v. Mathurdas Govinddas, 1980 AIR(SC) 1334 and submitted that first defendant is only the trustee for the petitioners. Learned counsel also made available the copy of the written statement filed in the suit.