VASU Vs. PATTU

JUDGEMENT

(1.) plaintiff is the appellant. Suit was instituted for specific performance of clause 8 of the agreement dated 16-7-1983.

(2.) plaintiff is the son. First defendant is the father and second defendant is the brother. Properties belonging to the plaintiff and defendants were partitioned orally in 1967 and partition deed was executed on 20-2-1972. According to the plaintiff, even though partition deed was registered, since first defendant was old and second defendant was employed in the electricity board the affairs of the family were managed by the plaintiff and by utilising the income obtained from the agricultural properties and by availing of loans from banks and by raising money executing promissory notes, certain properties were acquired. Even though some of the properties were partitioned as per the partition deed, they were having common mess and common residence. Difference of opinion arose between the parties which led to execution of karar dated 16-7-1983. As per clause 8 of the agreement, partition deed a schedule, koduvayur property set apart to the share of the first defendant has to be possessed and enjoyed by the first defendant till his death and after his death, the same has to be enjoyed by the mother and after the death of the mother properties must devolve upon the plaintiff and the second defendant by making two schedules and accordingly first defendant has executed the settlement deed which was agreed upon by the parties. Plaintiff`s case is that after signing the agreement defendants colluded together and with the intention of defeating the plaintiff, second defendant attempted to get a schedule properties from the first defendant for which they executed exchange deed no. 53 of 1984 of koduvayur sub registry office by which first defendant gave a schedule properties to the second defendant and took b schedule properties from the second defendant. Plaintiff submitted that exchange deed was not executed by him. Further it is also his case that first defendant has no manner of right to execute such an exchange deed and the same is not binding on the plaintiff. Since there is no other way for the plaintiff to ask the first defendant to execute the settlement deed as per clause 8 of the agreement, plaintiff instituted the suit. The first defendant filed written statement stating that the suit is not maintainable and the agreement is not admissible in evidence.

(3.) plaintiff in order to establish his case got himself examined as P.W. 1. P.W. 2 was also examined. Documents were marked as exts. Al to a20. On the side of the defendants first defendant got himself examined as D.W. 1 second defendant was also examined as D.W. 2. Trial court after considering the oral and documentary evidence did not grant the reliefs and dismissed the suit. Matter was taken up in appeal before this court by the plaintiff. Cross-objection was preferred by the first defendant. The appeal and the crossobjection were dismissed by the learned single judge of this court. Aggrieved by the same this appeal has been preferred.