PATHUMA KUNJU Vs. ASSYA

JUDGEMENT

(1.) DEFENDANTS 1 to 8 have filed this appeal from the Judgment and decree in O.S.No.170 of 1972 in the Munsiff's Court,Karunagappally for partition and mesne profits for a period of three years prior to the suit in the estate left by one Noohu Kannu.Noohu Kannu died in 1962.The 1st plaintiff had claimed to be one of the widows of the said Noohu Kannu and the 2nd plaintiff is the daughter born to Noohu Kannu by the 1st plaintiff.The 1st plaintiff claimed 1/16th share and the 2nd plaintiff 7/120th share.

(2.) THE suit was contested by the defendants.The 1st defendant is the 1st wife of deceased Noohu Kannu and defendants 2 to 8 are the sons by the 1st defendant.They contended that the 1st plaintiff is not the legally wedded wife of the deceased Noohu Kanuu and the 2nd plaintiff born in that unlawful wedlock is disentitled to inherit the estate left by Noohu Kannu.They further contended that the 1st plaintiff was not the wife of Noohu Kannu at the time of his death.Another contention raised was that the 2nd plaintiff agreed to the terms of the deed of gift dated 29th June 1960 executed by Noohu Kannu and the gift accepted by the 2nd plaintiff in lieu of her share in the other properties of her father which would debar her from claiming any share in the estate subsequently.A question of estoppel on the deed was said to arise.The defendants 'contentions were overruled and the suit was decreed.

(3.) IN this second appeal,the appellants defendants contend that the 2nd plaintiff is barred from claiming any share in the estate left by Noohu Kannu as she had accepted he gift under Ext.A1 on the basis that she will not claim any share in the estate of Noohu Kannu.Though this contention was raised originally in the appeal memo,on the basis of estoppel under S.115 of the Evidence Act,in an application to urge the additional ground in the appeal memorandum - C.M.P.No.12898 of 1977 - the appellants seek to take an additional ground which on the reading of the ground would indicate is only giving another basis for the same contention.The ground reads: