SARATHAMBAL Vs. SEERALAN

JUDGEMENT

(1.) The third defendant is the appellant. The suit property is stated to be a vacant site. The property originally belonged to the joint family of first and fourth defendants who are brothers. In their hands, it is admitted, it was a central property. The fourth defendant executed a deed styled ..(Text in Malayalam not Printed).. on 27-9-1948 in favour of his brother, the first defendant, releasing his half share in the suit property. At the time when he executed that document, he was unmarried. Subsequently, the first defendant sold the property to the second defendant and from the second defendant the third defendant has purchased the same. The plaintiffs are the children of the fourth defendant and they have filed the suit for partition and separate possession of their share in the property on the ground that the release deed could not deprive them of their share in the property of the joint family. They also pleaded that the release deed was executed under coercion and undue influence and that it was also a sham and nominal document that never came into operation.

(2.) The trial Court held that the release deed Ex. B-3 was true and valid, that the suit is barred by res judicata by reason of an earlier judgment and decree in O. S. No. 704 of 1962 in which the title of the first defendant to the suit property was accepted, that the suit is not barred by limitation and that, though the suit is, in time, since their father had released his rights, the plaintiffs art not entitled to a claim for partition and separate possession and on these findings it dismissed the suit.

(3.) The plaintiffs preferred an appeal and the only point that was raised before the appellate Court Was as to the legal effect of the release deed in respect of the shares of the plaintiffs in the joint family' property. Purporting to follow the decision of the Bombay High Court in Mahalingayya v. Sangayya, AIR 1943 Born 397, the lower appellate court held that the release deed cannot operate as a relinquishment of the rights of the plaintiffs and that therefore the plaintiffs are entitled to partition and separate possession as prayed for and in that view decreed the suit.