SATHY M.P. Vs. SARASA

JUDGEMENT

(1.) IN both these Regular Second Appeals, the appellants are plaintiffs in O.S.No.147/2004 on the files of the Principal Sub Court, North Paravur. The above Original Suit was decreed in part. The plaintiffs filed A.S.No.326/06 and the defendants filed A.S. No. 319/2006 before the Additional District Court, North Paravur, challenging the decree and judgment. The lower appellate court dismissed A.S.No.326/06 filed by the plaintiffs and allowed A.S.No.319/06 filed by the defendants in part. Feeling aggrieved, the plaintiffs filed R.S.A.No.1038/2009 challenging the decree and judgment passed in A.S.No.319/06 and R.S.A. No. 646/09 challenging the decree and judgment passed in A.S.No. 326/06. The 4th defendant filed cross -objection in R.S.A.No.1038/2009 challenging the decree and judgment passed in A.S.No.319/2006.

(2.) THE parties are referred to as in the Original Suit. The above Original Suit was one for declaration of title, injunction and for recovery of possession after setting aside the Will and sale deed in respect of 'A' and 'B' schedule properties respectively and for recovery of possession of the said properties. According to the plaint averments, plaint 'A' and 'B' schedule properties originally belonged to on Prabhakaran, the father of the plaintiffs herein. He died on 23/9/2003 and his wife was died in the year 2000. In the year 1982, the said Prabhakaran executed a Will bequeathing his properties in favour of defendants 2 and 3. Subsequently, defendants 2 and 3 conveyed plaint 'A' schedule property to the 1st defendant and 'B' schedule property to the 4th defendant. At the time of execution of the alleged Will, the above said Prabhakaran was not having a sound mind and hence the Will allegedly executed by Prabhakaran in favour of the defendants have no legal sanctity. The Will executed by Prabhakaran without knowing its contents and he was in an unsound state of mind at that time and he has no memory power to recollect what he has done. Thus, the Will is a fabricated and forged one and it has no legal effect at all. There is no proper attestation to the alleged Will. Hence any claim put forward under the Will by the defendants will not stand in the eye of law. Hence they prayed as stated above.

(3.) ON the above pleadings, P.W.1 was examined and Exts.A1 to A9 were marked on the side of the plaintiffs and D.Ws.1 to 3 were examined and Exts.B1 to B8 were marked for the defendants. After considering the evidence on record, the trial court decreed the suit in part. The suit was decreed in part declaring that the sale deed No. 529/04 dated 13/2/2004 of S.R.O., Kuzhuppilly, was invalid and it will not affect the right and interest of the plaintiffs over the 'B' schedule property. The 4th defendant was directed to hand over the possession of the 'B' schedule property to the plaintiffs within a period of two months, or else the plaintiffs are allowed to get recovery of possession through court. The defendants are restrained from creating any documents in respect of the 'B' schedule property and inducting strangers and committing waste in the property. Feeling aggrieved, both the plaintiffs and the defendants preferred A.S.Nos.326/06 and 319/06, as stated above. After, re - appreciating the entire evidence on record, the lower appellate court dismissed the appeal filed by the plaintiffs and allowed the appeal filed by the defendants in part, modifying the decree and judgment of the lower court by passing a decree declaring that the sale deed No. 529/2004 dated 13/2/2004 of S.R.O., Kuzhuppilly, is not binding on the plaintiffs and their respective interest, title and possession over the plaint 'B' schedule property and also passing a permanent prohibitory injunction restraining the defendants from committing any kind of waste in the plaint 'B' schedule property. Feeling aggrieved, both parties preferred the above Regular Second Appeals challenging the common judgment.