MATHAI Vs. THOMAS

JUDGEMENT

(1.) These appeals arise from the common judgment in a suit for declaration and a suit for partition. A.S No.258 of 1997 is filed by the plaintiffs, challenging the dismissal of O.S.No.28 of 1994 which is for a declaration that Ext.A1 gift deed is void and for recovery of possession. A.S.No.108 of 1997 is filed by the very same appellants challenging the decree and judgment in O.S.No.372 of 1992 which is a suit for partition in which they are defendants.

(2.) The plaint schedule property originally belonged to Mathai, the predecessor in interest of the plaintiffs in O.S.No.28 of 1994. As per Ext.A1 gift deed, the property was gifted by him to one Thomas and Saramma. The said Thomas and the legal heirs of Saramma are the defendants in O.S.No.28 of 1994. On the allegation that the said Mathai was fraudulently caused to execute Ext.A1 gift deed by the said donees making him believe that he was executing a deed cancelling a will, the said O.S No.28 of 1994 is filed by Yacob son of the said Mathai, challenging Ext.A1 gift and seeking a declaration that it is void. There is a further relief of recovery of possession from the defendants. The suit was originally filed on 16.11988 as P.O.P.11 of 1988 before the Munsiff's Court, Perumbavoor which was later numbered as O.S.16 of 1990 and thereafter transferred to Sub Court, Perumbavoor and renumbered as O.S.28 of 1994. Saramma, the second defendant in the suit died pending the proceedings and her children were impleaded as additional defendants 3 and 4. Pending suit, on 21.11991 they executed Ext.A6 release deed in favour of the legal heirs of Yacob the son of Mathai who are plaintiffs 2 to 5 in O.S No.28 of 1994, since Yacob the son of Mathai who was the 1st plaintiff in O.S.28 of 1998 died pending the suit, releasing whatever rights the said Saramma had obtained under Ext.A1 in their favour. O.S No.372 of 1992 is filed by Thomas the other donee under Ext.A1 gift claiming partition of his share over the properties on the strength of Ext.A1 gift deed.

(3.) The court below upheld the validity of Ext.A1 gift deed and consequently dismissed O.S No.28 of 1994; a preliminary decree for partition is passed in O.S No.372 of 1992. The said judgment is assailed in these appeals.