PARU Vs. CHIRUTHAI

JUDGEMENT

(1.) The plaintiff in O.S. No. 95 of 1973 of the Munsiff's Court, Taliparamba is the appellant. He died pending the appeal. His legal heirs have been impleaded as additional appellants 2 to 5. The defendants 1 to 3 and 5 and 6 in the suit are the respondents. Pending the second appeal, respondents 1 and 2 died. Their legal representatives have been impleaded as additional respondents 2 to 5 and 6 to 9. The plaint schedule has got six items of properties. They belonged to one Kutty. Kutty had five children Paru (plaintiff), Chirutha (1st defendant), Mathi (2nd defendant), Cheeru and Panchali. The last two are dead. The 3rd defendant is the son of the 1st defendant. The 6th defendant is the son of 2nd defendant and 5th defendant is the daughter of Cheeru. The 4th defendant is an assignee of item No. 6 from Kutty. As stated, the property belonged to Kutty. He died in 1936. He was holding that property under Trichambaram Devaswom as per a 'marupat' of the year 1930. According to the plaintiff on Kutty's death the property devolved on plaintiff and defendants 1 and 2. Defendants are not agreeable for partition in spite of demand and hence the suit. The defendants contested the suit. It was contended that items 1 to 5 were assigned by Kutty as per Ext B2 (unregistered document) dated 15-8-1937 to defendants 2 and 3 and they alone are entitled to the properties. On the basis of that document Kunhambu was having 1/4 share and the 2nd defendant 1/4 share. The plaintiff has no right in the suit properties. The suit is not sustainable. Even if the plaintiffs have got any rights, they are barred by adverse possession and limitation.

(2.) The controversy between the parties covered a wide range in the beginning. The Trial Court found Ext. B2, unregistered deed of assignment, to be genuine and denied relief to the plaintiff. It was also held that the plaintiff's right, if any, is lost by adverse possession and limitation. The suit was dismissed. The plaintiff appealed to the Subordinate Judge's Court, Tellicherry. That exclusive rights were claimed by defendants 2 and 3 on the basis of Ext. B2 unregistered assignment deed executed by deceased Kutty, was adverted to. In Para.4 of the judgment, the lower appellate court was perilously near, in holding against the genuineness of Ext. B2 document. It also held that the rights, if any, of the plaintiff are barred by adverse possession and limitation. The plaintiff has come up in appeal.

(3.) At the time of admission, the following three questions of law have been Formulated as substantial questions of law arising in the appeal: