MOHAMMAD Vs. KUNHAPPUTTY

JUDGEMENT

(1.) Appellant instituted O.S. 4 of 1985 before Munsiff Court, Parappanangadi seeking a decree for partition and allotment of his share in the plaint B Schedule property, having an extent of 2.42 acres in R.S. 223/1 of Cherukad Village of Eranad Taluk. Respondents 1 and 2 filed O.S. 299 of 1984 seeking a decree for permanent prohibitory injunction in respect of the same property contending that the property belongs to them absolutely. Plaint B schedule property admittedly originally belonged to deceased Pathummakutty Umma having obtained it on lease. Appellant is the son of Pathummakulty Umma in her first husband. Respondents 1 to 3 are the children born to her in her second marriage. Appellant contended that on the death of Pathummakutty Umma, plaint B schedule property devolved on all the legal heirs and therefore he is entitled to 2/7 shares and 3rd respondent is entitled to 1/7 shares and respondents 1 and 2,2/7 shares each. Respondents contended that plaint B schedule property is not available for partition as under Ext. A3 gift deed executed on 23-1-1963, Pathummakutty Umma had gifted the properties to respondents 1 and 2 and the gift deed was acted upon and accepted by them and being the donees, respondents 1 and 2 were in possession of the property since then and under Ext. B1 registered partition deed dated 19-7-1965, the property was divided between respondents 1 and 2 and first respondent purchased jenmon right from the Land Tribunal in respect of the property obtained under Ext. A3 and B1 evidenced by Ext. B2 purchase certificate and second respondent purchased jenmon right from the Land Tribunal in respect of the property obtained by him under Ext. B1 evidenced by Ext. B 3 purchase certificate and they were separately paying tax for the respective portions of the property since then and therefore appellant is not entitled to claim any share. Appellant sought the decree for partition after getting Ext. A3 gift deed set aside on the ground that it is vitiated by undue influence and hence not binding on the appellant or plaint B schedule property.

(2.) Respondents 1 and 2 in their suit contended that they are in absolute possession and enjoyment of the plaint schedule property under Ext. A3 gift deed and under Ext. B1 partition deed and Ext. B2 and B3 purchase certificate and defendants are not entitled to trespass into the plaint schedule property and therefore they are to be restrained by a permanent prohibitory injunction. Defendants in their written statement contended that they are in joint possession of the property as the property originally belonged to the mother Pathummakutty Umma and on her death it devolved on appellant also and they are in joint possession of the property and therefore respondents 1 and 2 are not entitled to the decree sought for. Both suits were tried jointly. Appellant was examined as PW 1 and a witness was examined as PW2. First respondent was examined as DW1 and a witness was examined as DW2. Exts. A1 to A3 on the side of appellant and Ext. B1 to B29 on the side of respondents were marked.

(3.) Learned Munsiff on the evidence found that the original of Ext. A3 gift deed was not produced and Ext. A3 gift deed was executed by an illiterate old lady and respondents 1 and 2 did not establish that the gift deed was validly executed by deceased Pathummakutty Umma or that it was accepted and acted upon. It was held that on the death of Pathummakutty Umma the property devolved on all the children and Ext. A3 gift deed is not valid. A preliminary decree was passed directing division of the plaint B schedule property into seven shares and allotment of two such shares to appellant after setting aside Ext. A3 gift deed. O.S. 299 of 1984 was dismissed in view of the preliminary decree passed in OS. 4 of 1985.