M. KANUKA KURUP Vs. VANIYARAMBATH LAKSHMIKUTTY AMMA

JUDGEMENT

(1.) Plaintiff in O.S. 46 of 1973 of the Subordinate Judge's Court, Badagara are the appellants herein. Defendants in the above suit are the respondents. The suit was one for partition and separate possession of plaintiffs' share in the B schedule properties with future profits. Plaint B Schedule consists of three items. Item 1 is a residential building. Item No. 2 is a compound about 22 cents in extent wherein the residential building is situate. Item No. 3 is a nilam about 40 cents in extent. Plaintiffs 1 and 2 and deceased Chathu Kurup are the children of one Kalyani Amma. The Ist defendant is the widow of Chathu Kurup and defendants 2 to 5 are their children. Kalyani Amma, Plaintiffs 1 and 2 and Chathu Kurup are members of the Thavazhi. They belong to Moniyarathu Tarwad. There was a partition in the tarwad evidenced by Ext. A1 dated 11-4-1965. It is labelled as a "partition deed". Plaint B schedule items 2 and 3 (compound and nilam) were allotted to the share of Kalyani Amma and B Schedule item No. I building was allotted jointly to Kalyani Amma and her children-plaintiffs 1 and 2 and Chathu Kurup. Ext. A1 contained certain conditions and directions regarding the allotments so made. It was stated in Ext. A1 that the building was left in common to these persons. It is common ground that Kalyani Amma died in 1973. Chathu Kurup died in the year 1969( ). Defendants 1 to 4 are the legal heirs of deceased Chathu Kurup. Supplemental 5th defendant was impleaded since the other defendants contended that 7 1/2 cents of land in item No. 2 was orally assigned by deceased Chathu Kurup to the 8th defendant, and in pursuance there to the 8th defendant is in possession. The plaintiffs allege that this is incorrect. It is alleged by the plaintiffs that after the demise of Kalyani Amma, plaintiffs came to know about a gift deed dated 21-7-1969 (Ext. B1) alleged to have been executed by deceased Kalyani Amma. By the said deed, Kalyani Amma gifted her entire property obtained as per Ext. A1 to Chathu Kurup, to the exclusion of the plaintiffs. The plaintiffs attack Ext. B1 as invalid and not binding on them. It is alleged that deceased Kalyani Amma did not execute the document and even so it was brought about by fraud, undue influence and coercion. Deceased Kalyani Amma was about 90 years old at the time of the document (Ext. B1) and deceased Chathu Kurup was residing with her and looking after her. Chathu Kurup took advantage of the situations and brought about the deed. The said gift deed Ext. B1 is against the terms of Ext. A1 partition deed and so. to the extent it militates against Ext. A1 it is invalid." In view of the infirmity attached to Ext. B1, all the three items of plaint. B schedule properties are liable to be partitioned, ignoring both Ext. B1 and the oral assignment alleged to have been given in favour of the 8th defendant. On these premises, the plaintiffs laid the suit for partition and separate possession of the plaintiffs' share in the plaint B schedule properties with future profits. The defendants contested the suit on many grounds. It is the defence case, that the plaintiffs are not entitled to any relief and that the plaint B schedule properties were gifted by deceased Kalyani Amma in favour of deceased Chathu Kurup by Ext. B1 dated 21-7-1969. The defendants also pleaded that deceased Chathu Kurup executed Ext. B2 will dated 27-10-1972 with respect to all his properties, including the plaint B schedule items in favour of defendants 2 to 4 and they are in possession accordingly. It is urged that Chathu Kurup died on 13th Dhanu 1148 and Kalyani Amma died on 1st Karkatakam 1148. It is the defence case that the plaintiffs have no right over items 2 and 3 of the plaint schedule and they are only entitled to 2/4 shares over item 1 (building) as per Ext. A1 partition. The plaint allegations that the gift deed was brought about by fraud, coercion and undue influence, were denied. Deceased Kalyani Amma though was of advanced age at the time of Ext. B1 document, was capable of understanding things correctly and Ext. B1 is not vitiated for the reasons stated in the plaint. After the death of Chathu Kurup, the properties are in the possession of defendants except 7 1/4 cents which was given to the 6th defendant by an oral assignment by deceased Chathu Kurup. The Trial Court held that Ext. B1 is a genuine document and was executed by deceased Kalyani Amma. The suit as it related to items 2 and 3 was dismissed. A preliminary decree for partition of plaint schedule item No. 1 in four equal shares and allotment of two such shares to the plaintiffs was ordered. The court also held that partition of item No. 1 will be effected on the money value, the plaintiffs being allowed their share in money. The preliminary decree so passed also directed that costs will be borne by the respective parties. The plaintiffs filed A.S. No. 132 of 1976 before the District Court, Kozhikode. By judgment dated 22nd August 1978 the decree and judgment of the Trial Court were confirmed. The lower appellate court held that Ext.B1 gift deed in favour of Chathu Kurup was not brought about as a result of any fraud, undue influence or coercion brought upon Kalyani Amma by deceased Chathu Kurup and that it is a valid document. Regarding the contention of the plaintiffs-appellants, that in view of the terms of Ext. A1 document Kalyani Amma was not entitled to transfer or alienate her rights over plaint B schedule item No. 1, building or other items, the learned District Judge took the view that the restriction upon alienation contained in Ext. A1 document is invalid because the property had become vested in Kalyani Amma by the earlier provisions of the deed. The appeal was dismissed with costs.

(2.) Plaintiffs have come up in second appeal. Appellants' counsel Sri. T. S. Venkiteswara Iyer attacked the approach made by the courts below in adjudicating as to whether Ext. B1 document is tainted or infirm as one brought about by undue influence, coercion or fraud. According to counsel the pleadings, the evidence and the circumstances brought about in the case would unmistakably point out that Ext. B1 document is invalid and infirm and so the subsequent will Ext. B2 executed by Chathu Kurup and the claim of the defendants pleaded in the written-statement will fall to the ground. It is urged that the courts below mis-read and mis-understood the relevant clauses of Ext. A1. deed, which will demonstrate that the said document is really a family arrangement which will conclusively show that Kalyani Amma was incompetent to deal with either item No. 2 compound or item No. 3 nilam. Clauses III, V, VI and VII of Ext. A1 were relied on in this connection. It is argued that Kalyani Amma was not given an absolute estate as per Ext. A1 deed, styled as partition deed, that she undertook not to alienate the properties allotted to her, so that after her demise, the other sharers (plaintiffs and Chathu Kurup) will take the properties allotted to her equally, that Ext. A1 being a partition is not a transfer within the meaning of the Transfer of Property Act. The view of the courts below, that the relevant clauses in Ext. A1 imposing a fetter against alienation, are - repugnant to the earlier clause by which the property become vested in Kalyani Amma, are invalid, is assailed. Counsel argued that at any rate Ext. A1 should be construed as a "family arrangement".

(3.) Counsel for the respondents, Mr. Rajagopal, as also Mr. Bhaskaran contended that the courts below on the facts and in the nature of evidence rightly came to the conclusion that Ext. B1 is a valid document executed by Kalyani Amma. It is contended that what was intended by the parties was that Kalyani Amma (alone) will be entitled to B schedule items 2 and 3 absolutely and that Kalyani Amma's three children will be jointly entitled to B scheduled item No. 1 residential building (only). The judgments of the courts below negativing the claim made by the plaintiffs are sought to be justified as legal and proper and it is the respondents' case that no interference is called for in Second Appeal.