MAHIN Vs. M. SHERIF

JUDGEMENT

(1.) Interesting legal question that arises for determination in this appeal is thus:

(2.) In order to answer the question, narration of brief facts are necessary. Deceased Raheema Beevi executed Ext.A1 settlement deed in the year 1997 in favour of her children, viz., the appellants and respondents. She had reserved a life estate and further declared that the document would come into effect only after her life time. While so, the 1st respondent attempted to alienate the property included in Ext.A1 after forcibly evicting his mother Raheema Beevi and her children. It is the case that then only she came to know about Ext.A2 deed, purported to be a release deed, whereunder Raheema Beevi said to have released her life estate in favour of the 1st respondent. This prompted Raheema Beevi to institute O.S.No.301 of 2006 before the Munsiff's Court, Alappuzha, impleading all her children, claiming reliefs against Ext.A2 release deed, which was caused to be executed by committing fraud on her. Subsequently the 1st respondent filed O.S.No.753 of 2006 before the same court seeking prohibitory injunction against the appellants claiming absolute right under Ext.A1. While so, Raheema Beevi amended her suit by adding a plea that Ext.A1 itself was void and unenforceable in the light of the principles in Mohammedan Law. Joint trial of the suits were held. The trial court rejected the suit filed by Raheema Beevi and decreed the suit filed by the 1st respondent. Thereupon Raheema Beevi filed appeal, A.S.No.71 of 2009 before the District Court, Alappuzha. The appellants also filed A.S.No.72 of 2009 before the same court. While the appeals were pending, the sole appellant in A.S.No.71 of 2009 (Raheema Beevi) died on 15.03.2010. In the said appeal, the appellants were supporting their mother. However, they had not engaged a lawyer, so that the day today proceedings were not known to them. Therefore the legal representatives of deceased Raheema Beevi could not joint the lis and continue the proceedings. Resultantly A.S.No.71 of 2009 was dismissed as abated. In the said circumstances, the appellants moved I.A.No.826 of 2010 in the said appeal praying to set aside the order dated 17.06.2010, dismissing the appeal as abated and consequently sought their transposition as appellants in the place of their mother. The lower appellate court, accepting the plea of the 1st respondent that the cause of action did not survive in favour of the appellants, dismissed the interlocutory application by the impugned order. That order is challenged here under Order XLIII Rule 1(k) of the Code.

(3.) Heard the learned counsel for the appellants. In spite of service of notice, the respondents did not appear and contest.