MOIDU HAJI Vs. KUNHABDULLA

JUDGEMENT

(1.) This Second Appeal is by the first defendant. Defendant No. 4 in the suit who is respondent No. 4 herein and who remained ex parte in both the courts is reported dead when the matter was taken up for hearing. Since he was ex parte in the courts below and he has not been given any relief by either of the courts and he has acquiesced even in the dismissal of the suit by the Trial Court I hold that it is not necessary to implead his legal representatives in this Second Appeal for a proper disposal of this Second Appeal.

(2.) Plaintiff is the son of one Kunhahammed. Defendant No. 2 is the widow of Kunhahammed. Defendants 3 to 8 are the children of Kunhahammed. through the second defendant The first defendant in the suit is the brother of defendant No. 2. Defendants 9 to 12 are the sisters of defendant No. 2 and defendant No. 1. The father of defendants 1, 2 and 9 to 12 was one Moosa Haji. The plaint schedule property belonged to Kunhahammed. He had mortgaged the property to a marketing society for a sum of Rs. 8000. It appears that Kunhahammed had also incurred other liabilities and one such liability was the amounts due to one Kanaran Nair. The plaintiff on the finding now rendered was born on 30.7.1956. On 13.3.1963, the plaint schedule property was sold by defendant No. 2 wife of Kunhahammed and defendants 3 and 4 with defendant No. 4 acting also as the guardian of defendants 5 to 8 and the plaintiff who were minors at that time to Moosa Haji father of defendant No. 2 as per Ext. A2. This was for the avowed object of discharging the liabilities of Kunhahammed and to save the other properties of Kunhahammed which had come into the hands of his heirs, defendant No. 2, defendants 3 to 8 and the plaintiff. Moosa Haji in his turn sold one half of the property acquired by him under Ext. A2 to his son the first defendant Moosa Haji died and his heirs including the first defendant divided the properties. The balance property included in Ext. A2 sale deed was also allotted to the share of the first defendant. Thus the entire property covered by Ext. A2 sale deed came into the hands of the first defendant

(3.) The plaintiff filed the suit on 18.3.1981 for partition and delivery to him of 14/94 share therein after ignoring the sale deed Ext. A2 alleged to have been executed on his behalf with past profits and for other consequential reliefs. The plaintiff pleaded that on the date of the transaction Ext. A2 he was a minor, that being Mohammedans his brother defendant No. 2 was not competent to represent him as a guardian or to sell the property on his behalf, that defendant No. 4 himself was a minor on the date of Ext. A2 sale deed, that Ext A2 sale deed was executed without bona fides and not for any necessity or benefit to the heirs of Kunhahammed including the plaintiff, that since the transaction was void qua his share, plaintiff was entitled to ignore the same and he was entitled to relief. In the plaint the plaintiff contended that he was born on 18.3.1960 and the suit was being filed within three years of his attaining majority (the last day of expiry of three years from cessation of minority). The first defendant resisted the suit contending that the sale was bona fide, was supported by consideration, that defendant No. 4 was a major on the date of that sale deed, 13.3.1963, that out of the proceeds debts binding on Kunhahammed and on his heirs were discharged and other properties of Kuhahammed saved, that Moosa Haji was a bona fide purchaser of the property, that the allegations against the sale deed were untrue and that the suit was ill conceived. The first defendant also contended that the suit was barred by limitation and also raised a terse plea in Para.26 of the written statement that if it was found that the plaintiff has any right in the property, the same was barred by adverse possession.