MUHAMMAD ABDUL RAZACK Vs. SYED MEERA UMMAL

JUDGEMENT

(1.) THIS appeal arises out of a suit filed by the respondent for declaration of her one -fourth share in the suit property and for partition of the same by metes and bounds.

(2.) THE suit property is a garden land of an extent of 40 cents with coconut plantations. The respondent based her title to the property on the foot of a document executed by her grand -mother on 27th October 1942, providing life interest for herself. After the demise of the grandmother, mutation was effected in the name of the respondent and she was paying the tax. Even during the lifetime of the respondent's grandmother, her undivided one fourth share was leased to the appellant(defendant) and therefore even after the death of the grandmother the appellant continues to be a lessee. In the meantime the respondent's father divorced her mother. Therefore her mother married a second time and the respondent was living with her mother. Her marriage was performed by her mother. In 1963, the respondent came to know that her father had conveyed the very property, which belonged to her to the appellant, by a document dated 25 -4 -1948 in the form of a release in favour of the appellant. The respondent herein, therefore, filed the present suit for declaration as aforesaid, as the document of release was void, inoperative and not supported by consideration and necessity.

(3.) ON these pleadings, the parties went to trial. The trial court found that the respondent's one -fourth share over the property could not be disputed, that the release deed Ex. A -6 was valid and binding on the respondent, as she had failed to set aside the same at that distance of time. In the end, the suit was dismissed. The plaintiff preferred an appeal to the District Court, Nagarcoil. During the hearing of the appeal, the plaintiff filed an application I. A. 128 of 1964, for raising an additional ground namely that the release deed in respect of the property situated within the registration district of Colachal was registered in the office of the Sub -Registrar of Attingal and that it was void as being fraud on registration. Hearing the appeal on merits, the lower appellate court found that the release deed by the respondent's father was supported by consideration and necessity but found that the release deed was void on the additional ground raised in the lower appellate court. However, as the trial court had not considered the evidence with regard to mesne profits the lower appellate court remanded the suit for fresh trial on those issues. It is against this judgment and decree, the defendant has preferred this appeal.