M MUNEMMA Vs. K BABY

JUDGEMENT

(1.) This is an appeal filed by the defendants who suffered a decree in O.S.No.50 of 1992. The plaintiff filed the suit for a sum of Rs.2,83,000/- and also for interest @ 12% per annum from the date of plaint till the date of realization. Alternatively the plaintiff sought a decree of declaration that she was absolute owner of plaint 'A' schedule property. She also sought a direction that defendants should deliver the possession of 'A' schedule property to her. The trial Court decreed the suit for Rs.2,83,000.00 with interest, therefore the appeal.

(2.) The plaintiff in the plaint alleged that she was daughter of 1st defendant born to the said defendant out of her marriage with one Mr. Lasarus. The plaintiff further alleged that when the plaintiff was 5 years old the first defendant left her marital home and eloped with the 2nd defendant. This happened about 35 years before according to the plaintiff. At that time the plaintiff's father Mr. Lasarus did not have any support for bringing up the plaintiff, therefore he called the defendant No.1 and entrusted cash of Rs.25,000.00 and gold jewellery weighing 50 tolas to her with a direction that she should bring up the plaintiff. He further asked her to spend the money for maintenance and for upbringing the plaintiff. He also directed the first defendant to deliver the gold to the plaintiff at the time of her marriage. The 1st defendant agreed to the request of the plaintiff's father and took the cash and jewellery. But, the 1st defendant did not maintain or take care of the plaintiff. The 1st defendant left the plaintiff in the custody of her maternal grandmother Smt. Rajamma. The 1st defendant utilized cash and jewellery entrusted to her by Mr. Lasarus for purchasing properties in her own name. These properties consist of agricultural land and mango gardens. The 1st defendant also gave part of the said cash and proceeds of the sale of the Jewellery entrusted to her to her paramour the 2nd defendant. The defendants acquired considerable properties by utilizing the amounts entrusted to defendant No.l by the plaintiff's father. When the 1st defendant deserted the father of the plaintiff she had no property of her own and 2nd defendant was also working as an operator in a cinema theatre. The plaintiff got married in 1967. The 1st defendant promised to deliver the plaintiff the amounts and jewellery but the defendant failed to do so. Smt. Rajamma, the grandmother of the plaintiff executed a Will on 9-11-90 in favour of the plaintiff bequeathing all her properties absolutely to the plaintiff. The said Rajamma died on 20th November, 1990. Even after the death of Rajamma the plaintiff asked the defendants to deliver to her the suit property. It is further contended that, till the death of Rajamma the 1st defendant was assuring the plaintiff that she would return the cash and jewellery, but after the death of Rajamma the 1st defendant at the instance of the 2nd defendant refused to return the cash and jewellery. A notice was given and the suit was filed. In the plaint it was also said that the 1st defendant has also come forward with a false case that late Rajamma had executed a Will in her favour.

(3.) In the written statement the defendants took a plea that the suit had been filed with false assertions with a view to get unlawful gains by evil means. It was denied that the plaintiff was the daughter of the 1st defendant. It was also denied that late Lasarus had entrusted any property to the defendant No.l. It was further stated that no Will had been executed by Smt. Rajamma, the mother of defendant No.l in favour of the plaintiff. On the other hand it was said that a will had been executed by Rajamma in favour of defendant No.l.