GOPALA PILLAI BHASKARAN PILLAI Vs. SIVARAMA PANICKER

JUDGEMENT

(1.) The unsuccessful plaintiffs in O.S. No. 98 of 1986 on the file of the Additional Sub Court, Kollam are the appellants herein. During the pendency of the appeal, the first appellant died and his legal representatives are additional appellants 6 to 9 and 24th respondent. Respondents 5, 6 and 7 were also dead and their legal representatives were impleaded as additional respondents 18 to 22. R.7, is recorded as legal representative of the deceased 6th respondent.

(2.) The plaintiffs filed the suit for setting aside various sale deeds executed by the first defendant and for partition of 1/2 share of the plaintiffs over the plaint schedule properties. The plaintiffs are brothers and sisters. They had one more sister by name Saudamini Amma who died issueless on 30th December, 1981. The first defendant is the husband of deceased Saudamini Amma. The plaint A schedule properties were allotted to deceased Saudamini Amma under Ext.A1 partition deed, B schedule under Ext.A2 exchange deed and plaint C schedule as per Ext.A3 settlement deed executed by her father, late Gopala Pillai. Plaint A schedule item No. 3 and Plaint C schedule item No. 6 properties were sold in the life time of Saudamini Amma and with the said funds plaint D schedule properties were acquired. All the above properties are the ancestral property of deceased Saudamini Amma. The plaintiffs and late Saudamini Amma were following Marumakkathayam System of Inheritance. On the death of Saudamini Amma, her right over the properties devolved upon her father and first defendant, her husband. Under S.16(3) of the Hindu Succession Act, the father is entitled to get one - half of the right over the plaint schedule properties and since the father died in 1966, the plaintiffs are entitled to get one - half of the right over the plaint schedule properties. The demand made by the plaintiffs for partition was not headed by the first defendant. He created some alienation in favour of other defendants. Exts.A4 to A9 are the sale deeds executed by the first defendant in favour of strangers. The recital in those documents would show that on the date of execution, no amounts were paid but for past consideration, the documents were being executed. So, it can be seen that they are sham documents. The first defendant has no right to execute those documents and hence the documents are not binding on the plaintiffs. The suit is filed for partition and separate possession of their one - half right.

(3.) The first respondent alone filed a written statement contending that the plaintiffs are not legal heirs of late Saudamini Amma. The mode of acquisition of properties by Saudamini Amma is admitted. After the death of Saudamini Amma, it devolved on the first defendant under S.17(ii) of the Hindu Succession Act. The plaintiffs are estopped from claiming any right over the properties since succession certificate was issued by a competent civil court in his favour in respect of the money left by the deceased in O.P. (Succession) 60/1982 before the Sub Court, Kollam. It is further contended that father of late Saudamini Amma has not obtained any right under the Hindu Succession Act, as he was not alive on the date of death of Saudamini Amma. Suit is to be dismissed.