PALLIYAT MARIYOMMA Vs. PALLIYAT KIDAVE

JUDGEMENT

(1.) THE plaintiffs in O. S. 1 /84 on the file of the Sub Court, lakshadweep are the appellants in this appeal. The said suit filed on 23-1-1984 and arising from Androth Island of Lakshadweep and was one for a declaration that Ext. B1 gift deed dated 3-8-1983 executed by khadeesumma in respect of the plaint schedule properties which are tarwad properties (Velliazhcha) in favour of her children, defendants 1 to 6 is not binding on the plaintiffs or the Palliyath tarwad or the plaint schedule properties comprising of 6 items of immovable properties. The plaintiffs also prayed for a perpetual injunction restraining the defendants from further alienating the plaint schedule properties or changing their character or acting against the interests of the plaintiffs or the said tarwad.

(2.) THE case of the plaintiffs can be summarised as follows :-The plaintiffs are residing at Palliayath House bearing No. C3/73 in Androth Island. The plaint schedule properties are the Velliazhcha or tarward properties of the plaintiffs and the defendants. Khadeesumma the donor under Ext. B1 was the karanavathi of the said tarwad. As per the custom prevailing in the island the Karanavathi has no right to alienate the tarwad property or convert the same into separate property (Thinkalazhcha ). She had only a right of management. While so, she executed Ext. B1 gift deed transferring the plaint schedule properties in favour of her children, namely, defendants 1 to 6. The survey settlement register shows her name as the owner in possession of the plaint schedule properties. The survey settlement is not complete. Ext. B1 gift deed is vitiated by undue influence, misrepresentation etc. since Khadeesumma who was 84 year old then was bed ridden and ailing. Hence the suit for declaration and consequential injunction.

(3.) DEFENDANTS 6, 8, 9, 11 and 16 remained ex parte. The 7th defendant filed a written statement supporting the plaintiffs. Even though the 3rd defendant entered appearance along with defendants 1, 2, 4 and 5 by filing a joint vakalath, he did not file a written statement. Defendants 1, 2, 4 and 5 filed a joint written statement contending inter alia as follows :-These defendants are residing along with the plaintiffs in the palliyath tarwad house which is plaint schedule item No. 3. The said property was obtained by Khadeesumma on partition and after her death plaint schedule item No. 3 has devolved on defendants 1 to 6 alone. Plaintiffs have no right over the said item. The 6th defendant is residing in Item 3 shown as puthiya srambikkal. Plaint schedule properties are the thinkalazhcha properties (self acquired) of Khadeesumma. There is no such custom that Velliazhcha properties cannot be converted into Thinkalazhcha. Khadeesumma had never treated this property as tarwad property. Undue influence etc. , alleged behind the execution of Ext. B1 gift deed are denied. After execution of Ext. B1 gift deed by Khadeesumma, there has been further partition evidenced by Ext. B2 partition deed dated 3-2-1984 whereby the properties have been divided between defendants 1 to 6. The plaintiffs have no right to challenge Ext. B1 gift deed. There was only one item of property belonging to Khadeesumma and defendants 1 to 6 jointly. O. S. 12/71 before the Munsiff's Court Androth was filed by the present first defendant for partition of that item and pursuant to Ext. B3 preliminary judgment dated 21-21972, ext. B4 final decree has also been passed and the parties have taken delivery of the respective plots. Plot B was allotted to Khadeesumma. If the plaint schedule properties were tarward properties the same would have been included in O. S. 12/1971. The 6th defendant who was a party to the said suit did not raise such a contention. O. S. 1/73 was a suit filed by the present plaintiffs 2 to 4 through their father claiming 3/16 shares in the properties covered by O. S. 12/1971 on the ground that the partition in O. S. 12/71 refusing shares to the daughters was not acceptable to the plaintiffs. The presents plaintiffs 2 to 4 and Khadeesumma and present defendants 1 to 6 were parties to O. S. 1/73 in which also the present plaint schedule properties were not included. Hence the present claim that the plaint schedule properties are tarward properties is barred by res judicata and estoppel. The suit is therefore liable to be dismissed.