R. SETHUMADHAVAN Vs. RATHEESH

JUDGEMENT

(1.) The second defendant in O.S.No.125/2002, who suffered a preliminary decree for partition is the appellant. The parties are hereinafter referred to as they are arrayed before the trial court.

(2.) The plaintiffs, who are the children of one late Baby and the first defendant, claimed 2/3rd share of the plaint schedule property on the basis that their mother, to whom the property belonged, had executed Ext.A1 settlement deed in their favour assigning her rights in favour of them as well as the first defendant. At the relevant time, plaintiffs were minors. The first defendant caused the death of his wife Baby. After attaining majority, when the plaintiffs verified the encumberance certificate etc., they found that the property has been assigned in favour of the second defendant by the first defendant. It was also found that the assignment deed so executed by the first defendant was for on his own behalf and on behalf of the plaintiffs as their guardian. It was alleged in the plaint that in a suit instituted by the second defendant against Baby for specific performance. After the death of Baby, the first defendant, the plaintiffs and plaintiffs' maternal grandmother were entered as legal heirs. It was also alleged that the first defendant was appointed as the natural guardian. The objection taken is that the first defendant had interest adverse to that of the minors and going by the provisions of the C.P.C., he could not have been appointed as their natural guardian. The suit went uncontested and a decree was passed for specific performance. It is alleged that the first defendant over enthusiastically executed a sale deed without even waiting for an execution petition being filed by the plaintiffs. Contending that in the light of Ext.A1 document, late Baby had no subsisting interest on the alleged date of execution of Ext.B1 agreement and they contended that no rights could have accrued to the second defendant. They also stated that they are entitled to ignore the decree in O.S.No.116/1996. Thus the suit was laid.

(3.) The first defendant filed a written statement assailing the gift deed and almost supporting the second defendant.