IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 8TH SEPTEMBER 2010 / 17TH BHADRA 1932 AS.No. 108 of 1996() ----------------------------- OS.169/1993 of PRINCIPAL SUB COURT,KOCHI .................... APPELLANT(S): DEFENDANTS 1 AND 3 ------------------------------------------------------- *1. ANNAKUTTY, WIFE OF JOSEPH, AGED 52, NOW RESIDING AT HOUSE NO.B9, SIV BASAN NAGAR, SIR MANDIR ROAD, NEAR VADAVALI WELFARE CENTRE, AMBARANATH P.O., THANA DISTRICT, BOMBAY. *2. ASHA JERRY, AGED 27, DAUGHTER OF ANNAKUTTY, ODATHAKKAL HOUSE, BEACH ROAD, MOOLAMKUZHI MURI, RAMESWARAM VILLAGE, KOCHI TALUK. (FIRST APPELLANT REPRESENTED BY HER POWER HOLDER THE SECOND APPELLANT. POWER OF ATTORNEY IS PRODUCED BEFORE THE LOWER COURT) BY ADVS. SRI.C.S.MANU SRI.S.K.PREMRAJ SRI.ANOOP JOSEPH SRI.ABHILASH AKBAR SRI.T.B.SIVAPRASAD RESPONDENT(S): PLAINTIFF AND 2ND DEFENDANT --------------------------------------------------------------------------- 1. ESPERITA, WIDOW OF XAVIER, AGED 81, RESIDING AT KURISINGAL HOUSE, MOOLAMKUZHI MURI, RAMESWARAM VILLAGE, KOCHI TALUK (DIED) *2. LEELAMMA REYNOLDS, AGED 43, RESIDING AT KURISINKAL HOUSE, BEACH ROAD, MOOLAMKUZHI MURI, RAMESWARAM VILLAGE, KOCHI TALUK *THE APPELLANTS AND THE 2ND RESPONDENT IS RECORDED AS THE LEGAL HEIRS OF THE DECEASED IST RESPONDENT VIDE ORDER DTD. 24.3.2010 IN MEMO DTD. 17.3.2010 C.F. 1710/2010. ADV. SRI.M.V.BOSE THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 08/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.740/1996 IN AS. NO.108/1996. DISMISSED 08/09/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. ........................................... A.S.NO.108 OF 1996 ............................................. Dated this the 8th day of September, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Kochi in O.S.No.169/1993. The suit was one for partition after setting aside the partition deed entered into between the mother and daughters. 2. It is the case of the mother that without her knowledge and by misrepresenting the son, played a fraud on her and a document was executed whereby she is totally deprived of the property which she is entitled under law. Therefore, she had sought to set aside the partition deed. 3. Parties to the partition deed are the first and second defendants. The first defendant is alloted 8.5 cents of property and the second defendant is allotted 12.5 cents of property under the document. The trial court on a consideration of the materials had arrived at a decision that the document is liable to be set aside and ordered division of the property. A.S.NO.108 OF 1996 2 4. Now the mother who had instituted the suit is no more. Legal representatives are only the first and second defendants. The correctness or validity of the document executed certainly cannot be challenged by the second defendant for the reason that she is the best beneficiary in the partition deed. Therefore she would be estoped from contending otherwise regarding the validity of the partition. Therefore by virtue of the death of the mother nothing remains for consideration and the property have to devolve as per the document. 5. Therefore, I set aside the decree and hold that defendants 1 and 2 can hold the property as stated in the partition deed entered into between them. The appeal thus allowed and disposed of accordingly. M.N. KRISHNAN, JUDGE. cl A.S.NO.108 OF 1996 2 M.N. KRISHNAN, J. ........................................... A.S.NO.108 OF 1996 ............................................. 8th day of September, 2010. J U D G M E N T