RATHI DEVI Vs. SIVASANKARAN NAIR

JUDGEMENT

(1.) Plaintiffs in O.S.299/93 on the file of Sub court, Ernakulam are appellants. Defendant is the respondent. Suit was filed for a declaration that Ext.A2 sale deed is not binding on plaintiffs and to set aside the same and for recovery of possession of plaint schedule property. Case of appellants was that Gopalakrishnan, husband of first appellant and father of appellants 2 and 3 are the son of Devaki Amma and plaint schedule property was set apart to the Thavazhy of Devaki Amma and her daughter deceased Saraswathi as per partition deed No. 3312/1119 of S.R.O, Edappally and Gopalakrishnan was born thereafter and he derived a right over the thavazhy property by his birth and while so, Saraswathi died as a child and her right also devolved on Gopalakrishnan. Devaki Amma sold a portion of property along with Gopalakrishnan during 1983 under Ext.A1 sale deed. Gopalakrishnan died on 5/12/1991. After the death of Gopalakrishnan, Devaki Amma was mentally weak and was not mentally free to take her own decisions. It was alleged that respondent exerting undue influence on her and prevailed over Devaki Amma to execute Ext.A2 sale deed and property was sold, as if the property belongs absolutely to Devaki Amma. It was contended that being legal heirs of Gopalakrishnan appellants have also right over the property and Ext.A2 sale deed is vitiated. It was contend that as legal heirs of deceased Gopalakrishnan, appellants have 3/8th shares in the property and Devaki Amma had 5/8th shares and appellants are entitled to get a decree for declaration that Ext.A2 sale deed is not valid and binding on plaint schedule property and also to set aside Ext.A2 which is void due to undue influence and appellants are entitled to get decree for recovery of possession also.

(2.) Respondent filed written statement contending that plaint schedule property having an extent of 27 cents was obtained by Devaki Amma and her daughter Saraswathi as per partition of 1119 and Gopalakrishnan was born several years thereafter and he has no right over the property and in 1992 Devaki Amma sold the property to respondent for valid consideration and before the sale Gopalakrishnan had died and Devaki Amma has no mental incapacity as alleged and Ext.A2 is a valid document and appellants are not entitled to the decree sought for.

(3.) Learned Munsiff framed necessary issues. On the side of appellants first appellant was examined as PW1 and a relative was examined as PW2. On the side of respondent he was examined as DW1. Exts.A1 and A2 were marked. Learned Munsiff on appreciation of evidence found that by birth Gopalakrishnan had a right over the plaint property as the property was allotted under partition deed in 1119 M.E to the Thavazhy consisting of Devaki Amma and her children and on the death of Saraswathi her right also devolved on Devaki Amma and Gopalakrishnan and on the death of Gopalakrishnan his rights devolved on appellants, his wife and children and therefore appellants have 3/8 share in the plaint schedule property. Learned Munsiff also found that appellants did not succeed in establishing that Ext.A2 is vitiated either by fraud, misrepresentation or undue influence Ext.A2 is valid as against share of Devaki Amma. Though decree for recovery of possession was sought learned Munsiff in the interest of justice granted a preliminary decree for partition of the 3/8 shares of appellants over plaint schedule property. Appellants challenged the decree and judgment before District court, Ernakulam in A.S.9/1995. Learned Additional District Judge on re- appreciation of evidence confirmed the decree and judgment passed by learned Munsiff and dismissed the appeal. It is challenged in this appeal.