JUDGMENT

1. Delay in filing application for substitution of deceased Respondent No. 9 is condoned. Applications for substitution of deceased Respondents Nos. 31 and 9 are allowed subject to all just exceptions.

2. This is an Defendants' appeal against a decree by which suit of the Plaintiffs for title and possession has been decreed. The aforesaid decree has been affirmed in first appeal by the High Court.

3. The case of the Plaintiffs in the suit filed is to the effect that they are the members of Kunnamgalam tavazhy which was a branch of Pooradam tharwad. According to the Plaintiffs one Pookoya Haji was the last surviving member of the Pooradam tavazhy and the Defendants are the wife and children of aforesaid Pookoya Haji. The Plaintiffs allege that as per custom prevailing in the Island, the properties belonging to the tharwad in the island are called Velliyazhicha properties (joint family properties) (hereinafter referred to as "the Friday properties") and Vyazhicha properties (self-acquired properties) (hereinafter referred to as "the Thursday properties"). The Friday properties belong to the tharwad and are to revert to the tharwad on the death of last surviving member of a branch. According to the Plaintiffs, contrary to the custom in vogue, Pookoya Haji had staked a claim to the Friday properties. The matter was resolved by a compromise deed dated 21st August, 1957 (Exhibit A-5) by which some of the Velliyazhicha (Friday) properties were agreed to be converted to Vyazhicha (Thursday) properties while the remaining were to remain as Velliyazhicha (Friday) properties. On the basis of the aforesaid compromise, an order was passed by the Tahsildar on 21st August, 1957 (exhibited as Exhibit A-6).

4. According to the Plaintiffs, contrary to the agreement, on 16th October, 1976, Pookoyo Haji had executed Gift Deed (Exhibit B2) in favour of his legal heirs in respect of all the Velliyazhicha (Friday) properties. The same being contrary to the compromise (Exhibit A-5) and the order of the Tahsildar (Exhibit A-6), the suit in question was filed claiming the reliefs earlier noticed.

5. The Defendants filed their written statement contending that the compromise deed (Exhibit A-5) was the result of coercion and exercise of undue influence on them by the Plaintiffs. The Defendants further contended that no such custom as claimed by the Plaintiffs existed and in any case with the coming into force of the Constitution such compromise will cease to have any legal effect. In support, reliance has been placed on a judgment of the Kerala High Court in Sheikriyammada Nalla Koya v. Administrator, Union Territory of Laccadives, Island 1967 K.L.T. 395.

6. The learned trial Court by its judgment dated 8th June, 1988 considered the plea set up by the Defendants with regard to the legality of Exhibit A-5 and Exhibit A-6 against issues Nos. 8, 9 and 11 framed in the suit. On a consideration of the evidence and materials adduced by the parties, the learned trial Court came to the finding that the case set up by the Defendants with regard to Exhibit A-5 and Exhibit A-6 has not been substantiated. In this regard, the learned trial Court specifically recorded a finding that though the compromise is dated 21st August, 1957, at no point of time the Defendants had brought any legal action to have the same invalidated on the grounds pleaded in the written statement filed in the suit. The learned trial Court also recorded a finding that the compromise between the parties (Exhibit A-5) was acted upon. Though the learned trial Court also dealt with the question of the existence of the custom as claimed by the Plaintiffs, it is not necessary to go into the said issue for the purpose of deciding the present appeal.

7. In the first appeal, the High Court, on a consideration of the rival claims, framed the following three questions for decision:

"i) What was the custom followed by the parties and whether Exts. A5 and A6 can be ignored on the ground that they were broug