V.P. VEERANKUTTY HAJI Vs. V.P. KUNHALANKUTTY

JUDGEMENT

(1.) A.S. No. 159 of 1978 arises out of O.S. No. 42 of 1977 and A.S. No. 137 of 1980 arises out of O.S. No. 126 of 1971 on the file of the Subordinate Court, Kozhikode. The above suits were tried jointly and evidence was recorded in O.S. No. 126 of 1971. Against the judgment and decree in O.S. No. 126 of 1971, the 1st defendant filed A.S. No. 78 of 1978 before the District Court, Kozhikode and against the judgment and decree in O.S. No. 42 of 1977, the plaintiff filed A.S. No. 159 of 1978 before this court. As both the appeals arise from a common judgment, this court in C.M.P. No. 16449 of 1979 withdrew A.S. No. 78 of 1978 to this court and renumbered as A.S. No. 137 of 1980. The 1st defendant has filed a Cross Objection in A.S. No. 159 of 1978.

(2.) O.S. No. 126 of 1971 was filed by plaintiff for rendition of accounts of a partnership business known as M/s V. P. Alikutty Haji and Go. and also for partition of assets of the partnership firm. O.S. No. 42 of 1977 was filed by the plaintiff for a declaration that a gift deed executed by deceased Alikutty Haji on 27th September, 1967 in favour of 1st defendant evidenced by Ext. B-1 is void, inoperative and. unenforceable and for setting aside the same and for partition of properties described in plaint A and B schedules and allotment of 14 shares out of 64 shares to the plaintiff together with mesne profits.

(3.) We shall first deal with A.S. No. 159 of 1978 which arises out of O.S. No. 42 of 1977. Plaintiff and the 1st defendant therein are sons of Alikutty Haji and defendants 2 to 5 are daughters of Alikutty Haji, who died on 9th November 1968. According to the plaintiff, the plaint schedule properties belonged to Alikutty Haji along with other items of properties. All the properties belonging to Alikutty Haji other than the plaint schedule properties were divided between the plaintiff and defendants 1 to 6 under partition deed evidenced by Ext. B-2, dated 21st November 1969. Admittedly, the plaint schedule properties were not included in the partition. It is the plaintiff's case that Ext. B-1, a gift deed executed by deceased Alikutty Haji on 27th September 1967 is void and unenforceable and is liable to be set aside. It takes in items 1 to 4 of plaint A schedule properties. In regard to items 5 and 6, the contention of the 1st defendant is that they are dedicated as wakf by Alikutty Haji and his brother Kunhalikutty under document No. 3009/1912, which was destroyed during the Mappila rebellion and that taking advantage of this position, the plaintiff has claimed right in respect of these items also.