HARIDASA MENON Vs. SARASWATHI BHAI AMMA

JUDGEMENT

(1.) THE plaintiff in a suit for partition and separate possession of his alleged 1/9 share in the plaint A schedule immovable and B schedule movable properties,with proportionate mesne profits,is the appellant;defendants 1 to 8 respectively are respondents 1 to 8.The first respondent died during the pendency of the appeal;and respondents 4,5,6 and 7 have been recorded as her legal representatives as per the order in C.M.P.No.8926 of 1975 dated 23rd June 1975,The trial court dismissed the suit with costs.

(2.) THE appellant -plaintiff's case briefly stated is as follows:"The plaintiff and defendants 2 and 3 are the sons,and the first defendant is the daughter of one Kunji Amma who died in August 1952.Defendants 4 and 5 are the sons,and defendants 6 and 7 are the daughters of the first defendant.The 8th defendant is the minor son of the 6th defendant.Plaint A and B schedule properties are the sub -tarwad properties of Kunji Amma.A schedule items 1 to 9 were obtained by the sub -tarwad under Ext.D -1 partition deed of the year 1107.A schedule items 10 to 12 belonged to Kunji Amma,and on her death they became the properties of the sub -tarwad.The plaintiff was having business in motor cars.Fearing that he might possibly get himself involved in debt he had executed a formal sale deed dated 15th November 1957(Ext.D -3 )(Document No.1647/57 of Anthicad Sub Registry Office)in the name of the 1st defendant and her children(defendants 4 to 7 ),which was neither acted upon nor intended to be acted upon,it being a sham document.There was no consideration for the alleged transfer.In spite of that document(Ext.D -2 ),the plaintiff continued to be a member of that tarwad,managing the tarwad properties and living in the tarwad house.In any event the undivided share of the plaintiff was inalienable,and therefore the document purported to be the sale deed is void,and the vendees thereof did not get any right.The plaintiff got married in 1969 which was not to the liking of defendants 1 and 4 to 7.This led the plaintiff to ask for partition by issuing a notice Ext.P -2 dated 24th January 1969 to defendants 1 and 4 to 7,and Exts.P -4 and P -5 notices dated 24th January 1969 separately to defendants 2 and 3 respectively.Defendants gave replies resisting the plaintiff's right to seek partition.Ext.P -2 dated 1st February 1969 is the reply sent by defendants 1 and 4 to 8 through their advocate and Ext.P -6 is the reply sent by defendants 2 and 3 jointly.The annual mesne profits of the plaint A schedule properties would be Rs.20,000.The plaintiff is entitled to have the A and B schedule properties divided into 9 equal shares,and to have one such share with separate possession allotted to him.

(3.) BEFORE us Sri A.K.Sreenivasan,counsel for the appellant,has advanced a two -fold argument:( i)Ext.D -2 sale deed dated 15th November 1957 executed by the plaintiff in favour of the first defendant and her children is void for the reason that at the time of its execration the plaintiff,in terms of section 62 of the Cochin Nayar Act,1113,had no right to alienate the property,and as such no title to his share in the property passed to the vendees;and(ii)it(Ext.D -2)is a sham document,not acted upon,and never intended to be acted upon,and is therefore void.