UMMAYUMMA Vs. KIZHAKKINIYAKATH THITHACHUTTY UMMA

JUDGEMENT

(1.) The appellant is the first defendant in O.S.No.81/2003 on the files of the Munsiff's Court, Parappanangadi. The aforesaid suit was filed by the 1st respondent herein for a declaration and also for consequential injunction. According to the plaintiff, she is the legally wedded wife of one Aboobackerkutty and defendant Nos. 2 to 4 are the children born in that wedlock. The marital relationship between the plaintiff and Aboobackerkutty was subsisting till the death of Aboobackerkutty on 26.9.2002. It is further averred that Aboobackerkutty has not married any other lady. He was a Government servant and he retired from service in the year 1986. While so, he started an illicit relationship with the first defendant and used to visit her house. It was also averred that Aboobackerkutty was suffering from mental illness and he was under treatment for insanity till his death. According to the plaintiff, he was not in a sound disposing state of mind and the first defendant and her brothers got executed several documents by Aboobackerkutty making use of his unsound mind. Thus, Exts.A1 to A3 documents were executed without his free will and the plaintiff came to know about the said documents during April 2002 only. The entire property acquired by Aboobackerkutty as per partition deed No.522/92 was described as 'A' schedule property and the property sold away to the first defendant and others are shown as 'B to D' schedules. Hence the plaintiff has filed the above suit for declaration that the documents executed by the first defendant in favour of defendant Nos.6 to 8 are not binding on the plaintiff and defendant Nos.2 to 4. The plaintiff sought for recovery of possession of plaint B, C and D schedule properties from the first defendant.

(2.) The first defendant in the written statement admitted that the plaintiff was the first wife of Aboobackerkutty and defendant Nos.2 to 4 are children born to the plaintiff through Aboobackerkutty. According to the first defendant, Aboobackerkutty divorced the plaintiff in the year 1965 and thereafter, there was no marital relationship between the plaintiff and Aboobackerkutty and subsequently, Aboobackerkutty married the first defendant on 9.1.1997 and from that day till his death the first defendant was his legally wedded wife. Aboobackerkutty accepted the first defendant as his wife and he expressly stated so in his several documents. The defendant Nos.2 and 3, who are the children of Aboobackerkutty, also admitted that the first defendant is the wife of Aboobackerkutty. According to her, Exts.A1 to A3 are valid documents, as those documents were executed by Aboobackerkutty with his free will and sound disposing mind. She denied the allegation that Aboobackerkutty was suffering from mental unsoundness. In short, according to the first defendant, the plaintiff was not the wife of Aboobackerkutty since 1965. Therefore, the suit is liable to be dismissed. Besides, she filed a counter claim for partition of 'E' schedule property.

(3.) On the rival pleadings, both parties adduced evidence, in abundance, consisting of the oral testimonies of P.Ws.1 to 3 and D.W.1 and Exts.A1 to A23, B1 to B57 and X1 to X4 were marked as third party exhibits and Exts.C1 and C2 were marked as court exhibits. After considering the aforesaid evidence, on record, the trial court dismissed the suit and decreed the counter claim and ordered partition of the counter claim schedule property among the legal heirs shown as defendant Nos.1 to 4.