KANNAN,P.V.(DR.) Vs. MEENAKSHI

JUDGEMENT

(1.) This appeal is filed by the 1st defendant. He challenges the preliminary decree passed by the Trial Court. In was confirmed in appeal. Plaintiffs five in number sought partition of the plaint schedule property into 23 equal shares and to allot to them five such shares. Ext. A1 is the gift deed executed by the original owners in favour of Narayani. Ext. A1 is clear, cogent and convincing that it was executed not only to Narayani but also to her descendents. There is a further stipulation that the property should be enjoyed as a Thavazhy property. That document was executed on 29.4.1935. Hence, there can be no doubt that the property was a Thavazhy property. From the evidence on record it is found that as on 1.12.1976, when Kerala Act 30 of 1976 came into force, there were 23 members in that Thavazhy and so those 23 members are to be treated as co-owners and so each of them is entitled to get 1/23 share.

(2.) The main contention raised by the appellant herein (1st defendant in the suit) is that when this property was proceeded against by the Bank, for realisation of the amount due to the Bank, the decree amount therein with cost, interest etc., was paid by the appellant herein and it was pursuant thereto Ext. A2 sale deed was executed by Narayani in favour of the appellant herein. The executant as well as the appellant herein seem to have thought that the property absolutely belonged to Narayani. But later when the said document was produced before the Bank for availing loan and when the prior documents were verified, it was found by the Bank that the property is a Thavazhy property and that Narayani had no absolute right over the property. The evidence would show that thereafter the appellant herein approached all the other members of the Thavazhy. Out of them five members were stated to have filed affidavits which were marked as Exts. X1 to X5 stating that they had no right over the property and that their rights were transferred to the appellant herein. But by those affidavits right to immovable property cannot be transferred, it was contended. It was contended that on the strength of those affidavits no transfer of interest in immovable property, valued more than Rs. 100/- could be created. It was contended that those affidavits were got executed by the parties without properly apprising them of the contents of those affidavits. The genuineness or acceptability of the affidavit is challenged contending that the deponents happened to sign the affidavits without knowing or understanding the contents of the affidavits which were type written in English. It is trite law that no transfer could be effected on the strength of such affidavits. Therefore, the contention raised by the appellant that he had acquired undivided 1/23 share each of those five persons was not accepted by the courts below.

(3.) The following substantial questions of law have been reframed:-