A. Lekshmikutty, J.

Challenging the judgment and decree in O.S. No. 13/1990 on the file of the Sub Court, Lakshadweep, Kavaratti Island, this appeal is preferred by defendants 1 to 7. The plaintiff filed the suit for declaration and cancellation of Ext. Al gift deed. The case of the plaintiff is that the plaint schedule property belonged to the plaintiff and defendants 1 and 8 to 12, who are members of Kakkethi tharwad. The tharwad was never partitioned. The tharwad properties cannot be partitioned without the consent of all the members of the tharwad. Defendants 2 to 7 are the wife and children of the first defendant. The 11th defendant is the mother of the minor plaintiff. Since she failed to protect the interest of the minor plaintiff, the suit is filed through the father of the minor. The first defendant in order to defeat the interest of the tharwad has executed Ext. Al gift deed in favour of defendants 2 to 7, who are the wife and children of 1st defendant. The 10th defendant filed suit, O.S. No. 7/80 before the Sub Court, Lakshadweep, Kavaratti Island for cancellation of the document. The present plaintiff was not a party to the said suit. This first defendant is not competent to execute the sale deed in favour of defendants 2 to 7. O.S. No. 7/80 was dismissed for default on 22.9.1990. The plaintiff in the said suit including the defendants did not prosecute the suit. The suit properties are being Kakkethi tharwad properties under the customary law of the Island, the property cannot be divided or alienated without the consent of all the members of the tharwad. Hence, the suit is filed for declaration that document No. 1/76 executed by the first defendant in favour of his wife and children as not valid and binding and for declaration that the plaint schedule properties are the Kakkethi tharwad properties.

2. Defendants 1 to 7 filed a joint written statement contending that the suit properties are not the tharwad properties as alleged in the plaint. The allegation that the properties were not partitioned absolutely also is not correct. The plaint schedule properties were enjoyed as 'Puthravakasam' thavazhy property along with other properties. But for the love and affection of the first defendant towards his sister Saina, she was also given right in the property. The first defendant and mother of defendants 8 to 11, Saina, got the properties partitioned as per the decree in O.S. No. 127/69 of the Munsiff's Court, Androth. As per the final decree passed in I.A. No. 92/71 'A' schedule therein was allotted to the first defendant and B schedule was allotted to late Saina. Accordingly, they were enjoying and possessing the properties separately by effecting improvements. After the death of Saina, her properties devolved on the members of her thavazhy including the plaintiff and defendants 8 to 12. After the division in O.S. No. 127/69, the properties never been enjoyed jointly and never considered as a joint family properties. The properties were enjoyed under the special custom of Kalpeni Island. The first defendant is competent to execute any document as he like. The gift deed was executed in favour of defendants 2 to 7 with the knowledge of defendants 8 to 11. After the execution of Ext. Al, the properties are possessed and enjoyed by defendants 2 to 7. Even if the plaintiffs and defendants 8 to 12 were having any right in the property, it was lost by adverse possession. The plaintiffs have no right to claim any right in the property. Defendants 8 to 11 were alive at the time of O.S. No. 127/69 and they were aware of the suit. But Saina, the mother of defendants 8 to 11 never wanted to implead them as parties in the said suit. The decision on the said suit is binding on defendants 8 to 11 also. The 10th defendant filed O.S. No. 7/90 claiming the same relief as the plaintiff claims in the suit. But it was abandoned knowing that defendants 1 to 7 are entitled for the property and so the suit was dismissed. It was no