BALACHANDRAN Vs. SUJATHA

JUDGEMENT

(1.) Plaintiff is the appellant. Suit was for partition and allotment of 1/3rd share in plaint schedule property to plaintiff declaring that a gift deed in favour of the predecessor of defendants 1 to 3 over that property is void. In the alternative setting aside of that deed, if so warranted, and, declaring that such deed is not binding on plaint property and plaintiff was also sought for. Suit was dismissed by the learned Sub Judge, and aggrieved, the plaintiff has preferred this appeal.

(2.) Plaintiff, late Sundaresan (husband of first defendant and father of defendants 2 and 3), and fourth defendant are the children of one Kamalakshy. She had another son, namely, Rajappan, who, as unmarried predeceased her. After the death of her husband, Kamalakshy and her children entered into Ext. A1 partition deed in which 'A' schedule was allotted to Kamalakshy and her son Rajappan. 'A' schedule has an extent of 23.125 cents and, on death of Rajappan, Kamalakshy became the absolute owner of that property. Later Kamalakshy executed a gift deed over 9 cents of land out of the above property in favour of plaintiff. Remaining extent of property in 'A' schedule, 14.125 cents, is the plaint property. Kamalakshy died on 14/09/1992. Demand for partition of plaint property by plaintiff to his brother, Sundaresan, and after his death to defendants 1 to 3 as well were not heeded, and, on enquiry he came to know that at the instance of his brother, Sundaresan, a deed had been registered over the plaint property as if it had been gifted to him by the mother, Kamalakshy, is his case. Gift deed allegedly executed by late Kamalakshy in favour of Sundaresan is a fabricated document and Kamalakshy was not having the capacity to identify or understand matters or execute document at her fag end of life, is his further case. Plaintiff claimed partition of his 1/3rd right in the plaint property seeking declaration that the document obtained by his brother over that property is void, and in the alternative, for setting aside that deed if so found necessary. Suit was contested by defendants 1 to 3 alone, and the 4th defendant remained ex - parte. Suit claim for partition and declaration was resisted by defendants 1 to 3 contending that late Kamalakshy had executed Ext. B2 gift deed dated 22/05/1992 over the plaint property in favour of Sundaresan. Accepting the gift Sundaresan was in possession and enjoyment of that property till his death and, thereafter, these defendants are in absolute possession and enjoyment of the property as its absolute owners, according to them. Challenge against the gift deed as a fabricated document was resisted by the defendants, who disputed the partible right claimed by plaintiff over the plaint property.

(3.) Fourth defendant in the suit, daughter of Kamalakshy and sister of plaintiff, remained ex - parte.