A SARABANU Vs. A M A ASMATHULLAH DIED

JUDGEMENT

(1.) THE second plaintiff is the appellant. THE appellant and the 12th respondent failed O.S. No.100 of 1978 on the file of the Subordinate Judge. Tirunelveli on 25.3.1978 for partition and separate possession of the plaintiffs 13/24th share in the suit schedule properties and for directing the first respondent herein to pay the plaintiffs 13/24th share on the future mesne profits from the date of plaint till the date of partition of their share.

(2.) AS per the plant averments, the suit properties comprising of two houses, originally belonged to one Hameeda who was the first wife of the first defendant and who left two daughters namely the appellant herein and one other daughter by name Firoz Banu. The first plaintiff/12th respondent herein is one of the sisters of late Hameeda. Smt.Hameeda had one other sister by name Lateefa who died in 1972. The respondents 5 to 9 are the heirs of Lateefa. On the death of late Smt. Hameeda, the suit properties devolved upon the first respondent herein to an extent of 1/24th share, the sister Lateefa to an extent of 1/24th share, the first plaintiff/12th respondent herein to an extent of 1/24th share, the appellant, the second plaintiff to an extent of 1/3rd share and her sister Firoz Banu for another 1/3rd share. According to the appellant, her sister Firoz Banu executed a registered release deed on 19.2.1968 relinquishing her share in the suit schedule property in favour of the appellant and the first respondent herein. Therefore, according to the appellant, her share got increased from 1/3rd to 1/2 and the first respondents share also increased from 1/4th to 5/12th.

(3.) ON the contention, namely Ex.A-4 should be held to be sham and nominal, the learned Judge held that having regard to the endorsement on the original of Ex.A-4 to the effect that the vendor received a sum of Rs.5,000 before the Registrar at the time of registration of the document that a sum of Rs.1,000 was paid earlier as advance as recited in the document. There was no scope to hold that there was lack of consideration in order to hold that Ex.A-4 was sham and nominal. The learned Judge, therefore proceeded to hold that Ex.A-4 cannot be held to be a void document and therefore the only question that remained to be considered was whether it was voidable one. Since as the appellant/ second plaintiff herein was minor at the time of the transaction. The learned Judge also held that failure to effect mutation in the municipal records cannot be taken to mean that title under the original of Ex.A-4 did not pass on to the fourth respondent herein. ON the question of possession, the learned Judge found that subsequent to Ex.A-6. the defendants 2 and 3 were put in possession, having regard to the fact that rents were being collected by them from defendants 10 and 11. ON the question relating to limitation, the learned Judge found that the date of birth of the appellant was 28.1.1954. Therefore the suit which was filed on 18.4.1978 was beyond the period of limitation. The appeal was ultimately dismissed by the learned Judge.