RAJESWARY, D/O VETTILAPAI Vs. CHELLAPPAN

JUDGEMENT

(1.) The defendants in O.S.No.83/1993 on the file of the Sub Court, Thodupuzha, are the petitioners. They are aggrieved by the impugned order dated 06.01.2011 in C.M.A.No.7/2010 of the District Court, Thodupuzha preferred from an order in I.A.No. 619/2009 in the suit. The suit is one for partition filed by the plaintiffs seeking separate allotment of share with respect to plaint A-Schedule property, and for other consequential reliefs.

(2.) A property having extent of three acres, belonging to the 1st defendant was settled vide settlement deed executed in the year 1971 by him in favour of defendants 2 to 8, who are his wife and children. At the time of settlement, all his children were minors, represented by their mother, the 2nd defendant. The plaintiffs claim that they purchased 5 cents and 10 cents of land out of the property, more particularly described in plaint B & C Schedule properties, in the year 1976. The 2nd defendant, being the mother, executed the sale deed as guardian for her children. The plaintiffs were made to believe by the parents that they had right to execute the sale deed for the educational expenses of their minor children. Another property was also offered as security for indemnifying any loss on account of any claim that may arise in future. That property is more particularly described as plaint D-Schedule. It is stated that after the purchase of the property, the plaintiffs constructed a house expending a sum of Rs.2.5 lakhs. The 1st plaintiff is a retired Class IV employee and he had availed a loan from the Department for the construction of the house.

(3.) Defendants 3 and 4 filed O.S.No.56/1984 before the Munsiff's Court, Thodupuzha against the plaintiffs in this suit and the remaining defendants seeking to set aside the sale deed with respect to B & C Schedule properties contending that the sale was not for family necessity as alleged and for partition and delivery of property. The other defendants also supported the plaintiffs in that suit. The plaintiffs herein took up a defence that even if the sale is found to be unsustainable, the entire property, having an extent of three acres, obtained by defendants 2 to 8, be partitioned and B & C Schedule properties be allotted to the share of defendants 2 to 5. However, the Munsiff's Court vide Ext.P8 judgment held that equity cannot be worked out in that suit and decreed the suit, setting aside the title deed of the plaintiffs herein. It was in consequence to that, that the plaintiffs filed the present suit for partition, including the entire extent of property belonging to the defendants obtained by them as per settlement of 1971. The plaintiffs state that defendants 6 and 8 had attained majority and consequent to that three years have elapsed prior to the filing of the suit before the Munsiff's Court. It is pointed out that on 26.04.1976 the 2nd defendant gifted 20 cents of land out of the property to the 5th defendant, which fact was suppressed by the defendants in the earlier suit. Defendants 3 and 4 along with the 1st defendant executed a sale deed in the year 1985 transferring their properties to the 8 th defendant. The plaintiffs would contend that the final decree proceedings in O.S.No.56/1984 is in progress and an Advocate Commissioner has been appointed for effecting partition and they apprehended that they would be dispossessed from B & C Schedule properties, and will cause irreparable injury and loss to them. Hence, in this application the petitioners seek a prohibitory injunction to restrain the respondents therein from dispossessing the petitioners from the property, assigned to them.