KUNJUNJAMMA Vs. ROSAMMA

JUDGEMENT

(1.) The appeal Suit, A.S. No. 52 of 1999, arises out of the judgment and decree of Subordinate judge's Court, Pala, in O.S. No. 227 of 1994, a suit for declaration, recovery of possession, mesne profits and injunction. The respondent herein as plaintiff instituted the suit. As per the plaint averments, the second defendant Kunjujamma was the wife of the first defendant, George Joseph. Defendants 3 to 5 were their children. First defendant was the brother of the plaintiff. In short, the defendants were the plaintiff's brother, his wife and children. The plaintschedule properties belong to the plaintiff. According to the plaintiff, originally the property belonged to the father of the plaintiff and first defendant, namely, Ouseph son of Ouseph. The plaint schedule property was included in E Schedule in the Will executed by the said Ouseph in June 1979. Ouseph died on 30-8-1991. On 25-1-1991, Item No. I of the plaint schedule property was sold to the plaintiff for a consideration of Rs. 31,000/= through the Mukthiyar holder of Ouseph by document No. 159/91. As per the recitals in the Will, the remaining property of the deceased Ouseph would devolve on his Wife Aley, if she is alive after his death and also that she had every right to sell or mortgage the properties. Only after her death, the property will devolve on the legal heirs. Thus, after the death of Ouseph; the property would devolve on his wife, who was the mother of the plaintiff and the first defendant. While so, on the basis of the right of Aley over Item No. II, she sold that property to the plaintiff for a consideration of Rs. 67,000/- on 11-5-1992, and thus, the plaintiff had got absolute right over Item No. II. Thus, both on Item Nos. I and II of the plaint schedule property, the plaintiff has got absolute right, as per the two separate documents, stated above. Besides the plaintiff and the first defendant, ouseph and Aley had another son by name, Joseph, who died earlier leaving his children, Annakkutty, Thresiamma, Mariakutty, Aleykutty and Claramma. There was a building situated in Item No.2 of the plaint schedule property, constructed by Ouseph, 60 years back and periodical repairs and maintenance were done by him. The first defendant, his family and mother Aley were residing in that building, during the life time of Ouseph. Cultivations were done by Ouseph. Few years prior to his death, the relationship between him and the first defendant became strained, and Ouseph and his wife Aley teft the house, because of the cruelty meted out to them by the first defendant, and were staying in a Poor Home for the Aged at Bangalore. Five Acres of property and 9 1/4 cents of property along with a two storied building and 9 1/4 cents of property along with a two storied building was given to the first defendant by Ouseph. Aley has given 2 1/2 acres of land in the name of the second defendant. The defendants were residing in Item No. II of the building, on the permission granted by Ouseph during his life time, but had no independent right over the same. After the sale of the property in favour of the plaintiff, they had no right and they became mere licenceesi As the plaintiff had no intention to permit them to stay there, the licence was cancelled and the same was duly intimated. The plaintiff, being the absolute owner of the property, is entitled to get recovery of possession from the defendants. Earlier, claiming right over the plaint schedule property, first defendant filed an Indigenous Application, I.A. No. 996/1992, before the Vacation Court, which was transferred to Munsiff Court, pala and re-numbered as O.S. No. 310/1992 against the plaintiff and her husband. The Will executed by Ouseph was produced in L.A.O.P No. 151 of 1992 before the District Court, Kottayam, for getting letters of administration. Hence, the suit.

(2.) The defendants filed a written statement. As per the Will executed by Quseph in 1979 the plaintiff will not get any right over the plaint schedule properties. It was stated that Letters of administration O.P. has not been disposed of, and pending consideration (then) before the District Court, Kottayam. As per the power of attorney produced by the plaintiff, it has been noticed that the Will has already been cancelled, and hence, any document created on the basis of the Will is unenforceable. It was also stated that the document produced by the plaintiff was not properly executed; that it was a forged document; that the plaintiff had no right over the plaint schedule properties; that the entire plaint schedule properties belong to the first defendant and the same is under his enjoyment and possession; that the plaintiff had been given sufficient ornaments and share at the time of marriage; that the plaintiff's sister was also given due share and other sister are Nuns; that the elder brother was also given due share by the father; that the plaintiff's mother had no right to sell Item No. II of the plaint schedule properties, which was not included in the Will; that the mother had only a life-estate over the plaint schedule properties and that the first defendant was looking after the parents. It was also stated that the building Situated in the property was demolished and extended by Spending more than Rupees One Lakh. The registration of the house was in the name of the first defendant and that he was paying the property tax. As per the Will, the entire property was allotted to the first defendant. The sisters of the first defendant exerted undue influence over the parents who were in their old age. The first defendant and her husband took the parents to an Orphanage at Bangalore and allowed them to stay there. Their father, ouseph, died subsequently on 10-8-1990, and the first defendant did the funeral functions. It was after taking the father to Bangalore that a power of attorney was created, but it has not come into effect and the father" was not in a position to execute the same. Even if it was admitted that the power of attorney was executed, it was only for maintaining the property, and the power of attorney holder has no right to sell the property. Subsequently, the sale deed executed based on the power of attorney had not come into effect. The first defendant was enjoying the property with a hostile animous to the knowledge of others, and therefore, the right, if any, of the plaintiff was lost by adverse possession and limitation.

(3.) The first defendant died during the pendency of the suit and defendants 2 to 5 were recorded as legal representatives of the defendant. They sought to amend the written statement raising a contention that as per the power of attorney, Ouseph and no intention to act upon the Will executed by him. Therefore, it must be deemed to have been cancelled and the plaintiff has no right over the plaint schedule items.