VALANHIYIL KUNHI AVULLA Vs. EENGAYIL PEETIKAYIL KUNHI AVULLA

JUDGEMENT

(1.) THE appellants are defendants i to 3 in a suit for partition.

(2.) THE plaint properties belonged to Mammad, who died on October 27, 1956. Defendants 1 to 3, and plaintiffs 1 and 2 are his children: On June 18, 1956, a deed of partition, Ext. 622, had been executed among Mammad and his children. Certain disputes "regarding properties that stood in the name of the 1st defendant and his exertions for acquisitions in the name of Mammad" were settled by that deed and properties divided among defendants 1 to 3 and plaintiffs 1 and 2 with immediate effect. It was agreed therein that properties not included in the deed belonged absolutely to the persons in whose name they stood and that no other party would have any claim thereto. Clauses 6 and 7 of that deed (translated in english) recite as follows:

(3.) THE Court below has found items 1 to 3 and 8 of plaint A schedule and 1/8 share in item No. 1 of plaint B schedule to have belonged to Mammad at the time of his death. They are admittedly not included in, and therefore within the ambit of clauses 6 and 7 of Ext. B22. Defendants 1 to 3 claim those properties absolutely under the above clauses, while the plaintiffs challenge the clauses as void and claim shares as on intestacy of Mammad. The Court below accepted the plaintiffs' case and decreed partition of 3/7 shares in Mammad's properties to them, with profits from date of suit. Hence this appeal.