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BABU v. BHARGAVI - SA No. 387 of 1993(D)  RD-KL 15734 (16 August 2007)
IN THE HIGH COURT OF KERALA AT ERNAKULAMSA No. 387 of 1993(D)
For Petitioner :SRI.S.VIDYASAGAR
For Respondent :SRI.R.PARTHASARATHY
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
O R D E R
S.A. NO. 387 OF 1993
Dated this the 17th day of August, 2007
Plaintiff in O.S.715/1985 on the file of Munsiff Court, North Paravur is the appellant. Respondents 1 and 2 are the defendants. On the death of first respondent, respondents 3 and 4 were also impleaded as legal heirs of first respondent. Plaint schedule property originally belonged to the family, consisting of first respondent mother and her children. The properties were divided under Ext.A1 partition deed. The plaint schedule property was allotted jointly to appellant and first respondent providing that after death of first respondent, it would devolve on the appellant alone and he will be the absolute owner. Subsequently first respondent executed Ext.B1 sale deed in favour of the second respondent son alienating her right in favour of second respondent. Appellant instituted the suit S.A.387/1993 2 contending that first respondent has no right to alienate the property and therefore Ext.B1 was obtained by second respondent exercising fraud and undue influence and therefore it is to be set aside. Respondents 1 and 2 in their written statement contended that first respondent is entitled to alienate the property and Ext.B1 sale deed was executed out of her will and therefore appellant is not entitled to challenge the same. Learned Munsiff after recording the evidence of PW1 and Dws.1 to 4 and Ext.A1 and Exts.B1 and B2 and Ext.X1 granted a decree holding that first respondent is not entitled to transfer the property as under Ext.A1 it is provided that after the death of first respondent, her right should also devolve on the appellant. Defendants challenged the decree and judgment before Sub Court, North Paravur in A.S.148/1988. Learned Sub Judge on reappreciation of evidence set aside the decree S.A.387/1993 3 holding that the provision under Ext.A1 regarding the right of the first respondent, after her death could only operate as testamentary in nature and therefore during her life time first respondent is entitled to alienate the property. It is challenged in the second appeal.
2. Second appeal was admitted after formulating substantial questions of law.
3. When the appeal was pending, after the death of first respondent appellant filed I.A.1213/2007 along with an affidavit of the second respondent for a direction to dispose the appeal in the light of the affidavit of the second respondent. In the affidavit second respondent stated that he is prepared to accept the original decree passed by the trial court and will not claim any right under Ext.B1 sale deed. Though the other children of first respondent were also impleaded in the appeal, on the death of the first S.A.387/1993 4 respondent, they did not appear.
4. Learned counsel appearing for second respondent submitted that he did not get any instruction from the second respondent. Therefore application was posted for objection if any. Inspite of opportunity granted, no objection was filed. Learned counsel appearing for second respondent submitted that second respondent did not furnish any instruction and therefore he is not in a position to offer any objection,
5. Learned counsel appearing for appellant submitted that in view of the admission of the second respondent in the affidavit filed to the effect that he has no intention to make any claim over the said piece of land on the basis of sale deed executed by the mother, who is no more and out of his love and affection for the younger brother and for ending up the family feud in between them he thereby declares that he unconditionally accept S.A.387/1993 5 the original decree passed in O.S.715/1985 dated 29.8.1987 as final and conclusive regarding the dispute, the appeal may be disposed without considering the merits. Recording the said submission of the learned counsel for appellant, the appeal is disposed of. M.SASIDHARAN NAMBIAR
M.SASIDHARAN NAMBIAR, J.W.P.(C).NO. /06
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