SUMATHY Vs. KAMALAMMA

JUDGEMENT

(1.) This appeal is directed against the judgment in O.P.No.294/1997 of the Family Court, Thiruvananthapuram. The petitioners and respondent in the above O.P. are the appellants and respondent respectively in this appeal. The above O.P.was filed in the family court for declaration of status, setting aside a sale deed and for permanent injunction.

(2.) The brief facts are as follows:- The appellants are the legal heirs of deceased Kochuraman Kochukunju. The 1st appellant married deceased Kochuraman Kochukunju on 3rd Meenam 1123 (M.E.) as per the customary rites and in that wedlock, appellants 2 to 4 were born to them. On 17.4.1979 Kochuraman Kochukunju died and till his death, the appellants were living with him in the petition schedule property in Muttathara Village. It is stated that the respondent put forward a claim over the plaint schedule property and she executed a sale deed for 6 = cents by virtue of Sale Deed No.2487/80 in favour of one Musthafa. She has no right to do so and that deed is void ab initio. The appellants are residing in the plaint schedule property and being the legal heirs of the deceased, they are the absolute owners of the property. The 2nd appellant had filed O.S.No.517/81 before the Munsiff's Court, Thiruvananthapuram for partition, impleading the respondent as the 2nd defendant as she claimed to be the wife of deceased Kochuraman Kochukunju. According to the appellants, in the circumstance, it was necessary to get a declaration that the 1st appellant is the wife of the deceased and appellants 2 to 4 are their children. The appellants also prayed for setting aside the sale deed and also for injunction against the respondent.

(3.) In the Court below, the respondent filed a written statement in which, it is contended that the appellants had no relationship with the deceased Kochuraman Kochukunju, but on the other hand, she was the wife of the deceased Kochuraman Kochukunju. The 1st appellant is the wife of one Nanukuttan, who is living in Kovalam, the other appellants are their children and they had no relationship with the deceased Kochuraman Kochukunju. After the death of Kochuraman Kochukunju, the 2nd appellant trespassed into the property of the respondent and filed a suit, O.S.No.913/1979 for partition. Thereafter, she filed another suit, O.S.No.517/81 and both cases were dismissed by the Munsiff Court. According to the respondent, the appellants have no right or possession in the plaint schedule property and the O.P. was barred by res judicata. It was contended that being the wife of deceased Kochuraman Kochukunju, the respondent inherited his right after his death. She executed Sale Deed No.2487/1980 after obtaining permission from the District Collector so as to raise money for the treatment of Kochuraman Kochukunju. That property was transferred to one 'Musthafa' and according to her the remaining 6 = cents are in her possession. Hence, she prayed to dismiss the petition.