Krishnan Kesavan vs Nangeli Amma Jauaki Ammaand Others

Kunhi Raman, C.J.—This appeal is presented on behalf of Defendant 4, from the decision of the District Munsiff of Pathanamthitta in O. s No. 479 of 1115. The suit was for setting aside a partition deed that was entered into by the members of an Ezhava tarwad. The partition was affected prior to the date on which the Tranvancore Ezhava Act III [3] of 1100 came into force. The parties to the document were Defendants 1 and 2 and their sister, Defendant 8. On the date of the document, Defendant 8 had two minor children, who are Plaintiffs 1 and 2. In the document she signed on her own behalf and as guardian of her minor children. Subsequent to the document, two more children were born to her, and they were joined in the suit as Plaintiffs 3 and 4. Plaintiff 5 is also a child born to Plaintiff 1 subsequent to the date of the partition deed.

The pleadings do not contain any material allegation regarding the circumstances in which the partition deed was executed. There is vague reference made to the consent of Defendant 3 having been obtained by a device and there is the malayalam word "fraud'' also used in the plaint. But there is no averment regarding any fraud or the particulars regarding fraud that was practiced when the consent of Defendant 8 was obtained to the execution of the partition deed, Ext. A. In the evidence of Defendant 3, she has '' made a vague reference to an assault committed on her by her brother, Defendant 1, some months prior to the date on which the document was executed. In spite of all these defects in the pleadings, the learned Munsiff has decreed the suit and directed that the Plaintiffs'' right to an enhanced share in the family properties should be ascertained and declared. We are, however, not concerned in this appeal with the decision so far as the members of the thavazhi who had joined in this partition deed or whose rights are affected by the partition deed, are concerned. Defendant 4, who is an alienee of three items of properties from Defendant 2, is the Appellant in this Court. So far as his rights are concerned,'' it will be seen that even if it is taken for granted that the suit was based upon the averment that the partition deed was vitiated by fraud or coercion, the transaction can only be regarded as voidable at the option of the parties concerned. There is no averment in the pleadings to the effect that Defendant-Appellant 4 is not bonafide transferee for value. In the case of such bonafide transferees, if they got the properties before the option to treat the document as invalid is exercised by the parties to it; it will not be open to persons in the position of the Plaintiffs to ask for a decree which will prejudice the interests of the alienee in the position of Defendant 4. In the circumstances, the learned Counsel for the Plaintiffs-Respondents states that in case the decree is only modified to the extent, to which relief is to be given to Defendant 4, be will have no objection. The Appellant''s learned Counsel also is interested only in seeing that relief is given to Defendant 4, who is his client. Although we are not expressing any opinion in favour of the correctness of the decree made by the court below, since the controversy between the parties has become limited in this matter BO far as the appeal in this Court is concerned, it is sufficient for the purpose of this appeal to allow it to the extent to which Defendants interest in the property is concerned.

The appeal is accordingly allowed and the decree made by the court below, so far at it affects the rights of Defendant 4 over the properties purchased by him under Ex. 1 are concerned, is set aside. The other clause in the decree shall not in any way injuriously affect the rights of Defendant Appellant 4 in respect of the property purchased by him. The appeal it accordingly allowed without interfering with the remaining clauses in the decree regarding the readjustment of the clauses in the partition deed. The Appellant shall have his costs of this appeal from the Plaintiff�s Respondents.