ABRAHAM MATHEW Vs. BABY N ABRAHAM

JUDGEMENT

(1.) Defendants 1 and 2 are the appellants. The trial court granted a decree declaring the title of the plaintiff to the plaint schedule property. A further declaration was granted that Ext A3 sale deed and Exts A5 and A6 mortgage deeds would not bind the plaintiff and the plaint schedule property. The relief of recovery of possession of the plaint schedule property on the strength of plaintiff's title was also decreed. Defendants 1 and 2 were restrained by injunction from trespassing into the plaint schedule property, committing any waste in the property and from committing any illegal act detrimental to the right of the plaintiff in the property. It was clarified by the trial court that the decree of injunction prohibiting trespass into the plaint schedule property would come into effect only after taking delivery of the property by the plaintiff. Defendants 1 and 2 filed appeal against the decree of the trial court. Their appeal was dismissed by the lower appellate court. Hence they are in second appeal assailing the concurrent findings of the courts below.

(2.) The case pleaded by the plaintiff may be briefly stated as under : The plaint schedule property is a part of the property in respect of which Ext A1 certificate of purchase was issued to the plaintiff by the land tribunal in 1977. Since she was residing abroad she executed Ext A2 power-of-attorney in favour of her father for the smooth management of the property. The second defendant is the brother of the plaintiff and the first defendant is the son of the second defendant. Defendants 1 and 2 influenced the plaintiff's father, who was old, sick and senile, to get Ext A3 sale deed executed in favour of the first defendant. The said sale deed is vitiated by undue influence. The plaintiff's father had no authorisation from the plaintiff to sell the plaint schedule property or to receive any sale consideration. After the death of the plaintiff's father, defendants 1 and 2 had illegally taken possession of the plaint schedule property. The first defendant executed Exts A5 and A6 mortgage deeds in respect of the plaint schedule property in favour of the third defendant co-operative bank at a point of time when the second defendant was its president. Exts A3, A5 and A6 are invalid documents.

(3.) Defendants 1 and 2 raised the following contentions in their written-statement : The plaintiff was only 12 years old at the time of issuance of Ext A1 certificate of purchase in 1977. The real cultivating tenant was the father of the plaintiff who obtained Ext A1 in the name of the plaintiff. It was nothing but a family arrangement of assets. The plaintiff was never the absolute owner of the plaint schedule property. She had consented to the execution of Ext A3 sale deed by her father.