IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 28TH MARCH 2011 / 7TH CHAITHRA 1933 RSA.No. 358 of 2011() --------------------- AS.16/2007 of DISTRICT COURT, PALAKKAD OS.201/2004 of MUNSIFF COURT, ALATHUR .................... APPELLANT/APPELLANT/PLAINTIFF: -------------------------------------------------------- MOHAMMED ABDUL KADHER, S/O.MUHAMMED IBRAHIM, AGED 63 YEARS, POTTIMADA, VANUR KATTUSSERI AMSOM DESOM, ALATHUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.BABY MATHEW RESPONDENT(S): RESPONDENTS/DEFENDANTS: -------------------------------------------------------------------------- 1. YAKOOB, S/O.MUHAMMED IBRAHIM, AGED 53 YEARS, POTTIMADA, VANUR KATTUSSERI AMSOM DESOM, ALATHUR PO, PALAKKAD DISTRICT - 678 541. 2. ALEEMA, W/O.ABDUL KAREEM, AGED 55 YEARS, MATTUVALAVIL, PATTIMUKKU, THATTAMANGALAM VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT - 678 541. 3. BASHEER, S/O.MUHAMMED IBRAHIM, AGED 50 YEARS, OPP. POLICE QUARTERS, COURT ROAD, KATTUSSERI AMSOM, ALATHUR PO, PALAKKAD DISTRICT - 678 541. 4. JAFFERUNEESA, W/O.ABDUL RAHMAN, AGED 52 YEARS, KATTUSSERI AMSOM, ALATHUR PO, PALAKKAD DISTRICT - 678 541. Kss ..2/- ..2... RSA.NO.358/2011 5. BABY SHAKEELA, D/O.JAFFERUNEESA, AGED 32 YEARS, KATTUSSERI AMSOM, ALATHUR PO, PALAKKAD DISTRICT - 678 541. 6. KAJAHUSSAIN, S/O.JAFFERUNEESA, AGED 30 YEARS, KATTUSSERI AMSOM, ALATHUR PO, PALAKKAD DISTRICT - 678 541. 7. FAROOK, S/O.JAFFERUNEESA, AGED 27 YEARS, KATTUSSERI AMSOM, ALATHUR PO, PALAKKAD DISTRICT - 678 541. 8. MINISIYA, D/O.JAFFERUNEESA, AGED 24 YEARS, KATTUSSERI AMSOM, ALATHUR PO, PALAKKAD DISTRICT - 678 541. 9. VARGHESE, S/O.ANTHONI, AGED 67 YEARS, KATTUSSERI AMSOM, ALATHUR PO, PALAKKAD DISTRICT - 678 541. 10. MAJEED, FATHER'S NAME NOT KNOWN, AGED 57 YEARS, KATTUSSERI AMSOM, ALATHUR PO, PALAKKAD DISTRICT - 678 541. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR, J ........................................... RSA .NO.358 OF 2011 ............................................ DATED THIS THE 28th DAY OF MARCH, 2011 JUDGMENT Plaintiff in O.S.201 of 2004 on the file of Munsiff Court, Alathur is the appellant. Respondents are the defendants. Plaint schedule properties originally admittedly belonged to Adama and on his death, it devolved on Sulekha Umma and Abdul Khader. It is also admitted case that on the death of Abdul Khader, his rights devolved on the legal heirs, wife and children who along with Sulekha Umma divided the properties as per registered partition deed 1509/86 whereunder plaint schedule properties were alloted to the share of Sulekha Umma. Abdul Rahiman, appellant and respondents 1 to 3 are her children. Second respondent alone is the daughter and others are sons. Appellant is claiming 2/9 shares contending that on the death of Sulekha Umma, properties devolved on the appellant, respondents 1 to 3 and respondents 4 to 8, the legal heirs of Abdul Rahiman. Respondents 3 to 8 resisted the suit contending that Sulekha Umma under Ext.B1 sale deed transferred item No.2 of the plaint RSA 358/2011 2 schedule properties in favour of Abdul Rahiman and on his death, respondents 4 to 8 the legal heirs transferred their right in favour of 10th respondent under Ext.B4 and therefore item No.2 of the plaint schedule properties is not available for partition. It was also contended that Sulekha Umma sold item No.1 of the plaint schedule property under Ext.B3 sale deed in favour of third respondent and third respondent subsequently assigned the property in favour of 9th respondent under Ext.B2 and therefore item No.2 of the plaint schedule properties is also not available for partition. Respondents 9 and 10 were not originally impleaded. Subsequently they were impleaded and plaint was amended contending that Exts.B1 and B3 were not executed by Sulekha Umma and she was being treated in the hospital and was not in a position to consciously execute the sale deeds. 2. Learned Munsiff, on the evidence of PW1, DW1, Ext.A1, B1 to B9, C1 and C2 found that as Sulekha Umma had transferred the plaint schedule properties under Ext.B1 and B3 in 1994, plaint schedule properties are not available for partition and therefore dismissed the suit. Appellant challenged the judgment before District Court, Palakkad in A.S.16 of 2007. RSA 358/2011 3 Learned Additional District Judge, on reappreciation of evidence, confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in this second appeal. 3. Learned counsel appearing for appellant was heard. The argument of the learned counsel is that respondents 9 and 10 obtained the plaint schedule properties under Exts.B2 and B4 subsequent to the institution of the suit and no evidence was adduced by either third respondent or respondents 4 to 8 and in such circumstances, when execution of Exts.B1 and B3 was challenged and no evidence was adduced in support of the execution, courts below should have found that under Exts.B1 and B3, Sulekha Umma had not transferred the properties and should have found that plaint schedule properties are available for partition. The learned counsel relied on the decision of the Honourable Supreme Court in Vidhyadhar V. Mankikrao & another (AIR 1999 SC 1441) and submitted that adverse inference has to be taken as against third respondent and respondents 4 to 8, as well as respondents 9 and 10 for their non examination and in such circumstances, a preliminary decree is to be passed. RSA 358/2011 4 4. The suit is instituted claiming partition of the plaint schedule properties contending that on the death of Sulekha Umma, plaint schedule properties which admittedly belonged to her devolved on the legal heirs and being the son, appellant is entitled to 2/9 shares. Exts.B1 and B3 sale deeds were executed by deceased Sulekha Umma on 28.6.1994. Exts.B2 and B4 were executed by the assignee and legal heirs of the assignee on 8.9.2004 and 24.7.2004. Suit was instituted only in 2004. When Exts.B1 and B3 show that plaint schedule properties were alienated by Sulekha Umma in 1994, appellant is claiming a share as if the properties were left behind by Sulekha Umma on her death. When Ext.B1 and B3 show that a decade earlier to her death Sulekha Umma transferred the properties, unless Exts.B1 and B3 are set aside, appellant is not entitled to seek partition of the properties. Appellant cannot ignore Exts.B1 and B3 executed by Sulekha Umma as they are not void documents, as canvassed by the learned counsel. It could at best be voidable documents on the ground that executant did not voluntarily execute them as she was not in a position to understand the contents of the document. Even if they are voidable documents, so long as they RSA 358/2011 5 are set aside, they are binding on the legal heirs. Hence appellant is not entitled to seek partition of the properties. In such circumstances, I find no substantial question of law involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk