ALAVI Vs. AMINAKUTTY

JUDGEMENT

(1.) The 1st plaintiff and the legal representatives of the 2nd plaintiff in O. S. No. 5 of 1974 of the Munsiff's Court, Manjeri (re-numbered as O. S.193 of 1974, Munsiff's Court, Perintalmanna) are the appellants. The defendants in the suit are the respondents. The suit was one for partition of the properties belonging to Mammussan Haji who died on 12-12-1972. The plaint schedule contained 4 items. Mammussan Haji died leaving behind the 'plaintiffs (brothers), defendants 1 and 2 (daughters) and the 3rd respondent (wife) as legal heirs. Deceased Haji had no male issue. All the 4 items of the properties belonged to deceased Haji and were in his possession. The plaintiffs claimed that they are entitled to 5/24 shares, defendants 1 and 2 together to 12/24 shares and the 3rd defendants to 3/24 shares. A notice was issued to the defendants on 23-8.1973 demanding partition. The defendants denied the claim The plaintiffs are not aware of the gift in favour of defendants 1 and 2 by late Haji as mentioned in the reply notice. Items 1 and 2 of the plaint schedule were purchased by late Haji in the name of defendants 1 and 2, benami. On these averments the plaintiffs prayed for partition and recovery of their shares with future mesne profits. The defendants denied the plaint claim. It was contended that items l and 2 belong to defendants 1 and exclusively by virtue of Ext.B1 deed dated 17-1-1950. Defendants 1 and 2 specifically stated that decreased Haji has no right in items 1 and 2. Regarding items 3 and 4 of the plaint schedule, defendants 1 and 2 contended that Mammussan Haji executed Ext.B2 gift deed on 4-8-1970 in their favour and that they are in actual possession and enjoyment of the said items pursuant thereto. The claim, of the plaintiffs for partition and for allotment of shares in the plaint items was denied.

(2.) The Trial Court found that items 1 and 2 of the plaint schedule belonged to defendants 1 and 2 exclusively by virtue of Ext. B 1 and as such are not available for partition. It was also found that deceased, Mammussan Haji gifted items 3 and 4 of the plaint schedule in favour of defendants 1 and 2 by Ext.B2 document dated 4-8-1970. The gift was accompanied by delivery of possession. On these premises, the suit was dismissed. An appeal was filed by the plaintiffs as A. S.5 of 1976 before the subordinate Judge's Court, Manjeri. The only question that was canvassed was whether Ext.B2 gift deed dated 4-8-1970 was valid and defendants 1 and 2 had taken possession of the properties. The Lower Appellate Court after adverting to Ext. B2 gift deed and Exts.B5 to B11 assessment receipts, held that there was a valid and complete gift and dismissed the appeal filed by the plaintiffs. The plaintiffs have come up in Second Appeal.

(3.) At the time of admission of the Second Appeal, the following 4 questions of law were formulated as substantial questions of law arising for consideration in the appeal;