The 11th defendant in the suit O.S. No. 137 of 1992 on the file of the Sub Court, Attingal is the appellant in this Appeal.

PRAYER IN THE PLAINT

The above said suit instituted by respondents 1 and 2 herein was one for a declaration of the plaintiff's title as per Ext.A3 gift deed dated 27-12-1977 and for a declaration that Ext.A4 cancellation deed and subsequent deeds of transfer executed by the plaintiffs' father (first defendant) are void and for a perpetual injunction restraining the defendants from trespassing into the plaint schedule properties and also for recovery of possession of the plaint schedule properties on the strength of the plaintiff's title in case it is found that possession of the properties are with defendant No. 4 onwards.

THE PLAINT AVERMENTS

2. The case of the plaintiffs can be summarised as follows:-

The two plaintiffs are the children born to the first defendant Nazeer and his wife the 3rd defendant Naheema Beevi. The 2nd defendant Mariyam Beevi is the mother of the first defendant. Since the plaintiffs are minors, the suit is instituted through their maternal uncle acting as their next friend. Plaint schedule item Nos. 1 to 3 were obtained by the first defendant as per a partition deed registered as document No. 2206 of 1975 S.R.O. Kazhakoottam (Ext.B4) and plaint schedule item No. 4 was purchased by the first defendant as per Ext.A2 registered sale deed dated 5-10-1997. The first defendant was in possession and enjoyment of the properties paying the tax etc. While so, defendants 1 and 3 jointly executed Ext.A3 gift deed dated 27-12-1977 gifting all the plaint schedule properties to the first plaintiff, then a minor child and to the unborn children, if any, to be born to the donors. At the time of the gift deed the 2nd plaintiff was not born. The gift was accepted by the 3rd defendant mother and the 3rd defendant was holding the properties in trust for the donees. Subsequently, the first defendant executed Ext.A4 cancellation deed dated 15-11-1979 revoking Ext.A3 gift. The said cancellation deed was executed without the junction of the 3rd defendant. Ext.A4 cancellation deed is void ab initio and will not affect the right and title of the minor plaintiffs in whose favour Ext.A3 gift executed by defendants 1 and 3 jointly had become complete and irrevocable. The first defendant had filed a suit as O.S. No. 62 of 1979 before the Sub Court, Attingal for setting aside a sale deed executed by him in favour of his wife, the 3rd defendant. The Ist defendant alleged in the said suit that the sale deed was devoid of consideration and was vitiated by fraud and undue influence. The said suit was contested by the 3rd defendant and the Sub Court dismissed the suit. It was during the pendency of the said suit that the first defendant executed Ext.A4 cancellation deed. An appeal filed by the Ist defendant as A.S. No. 125 of 1986 was also dismissed. After Ext.A4 cancellation deed the first defendant executed Exts. A9, A5 and A7 transfers in favour of strangers. The 4th defendant to whom 60 cents of land along with the house in plaint schedule item No. 1 was sold under Ext.A5 has further sold the said property to the 5th defendant as per Ext.A6. Since Ext.A4 cancellation deed is null and void, all subsequent transfers effected by the first defendant father are invalid. Hence, the suit.

3. Initially, defendants 5 and 7 alone filed separate written statements.

DEFENCE OF D5

The 5th defendant contended as follows:-

It is for the plaintiffs to decide as and when they attain majority, whether they should claim any right under Ext. A3 settlement deed and whether they should challenge Ext.A4 cancellation deed. They have a right to ratify Ext.A4 cancellation deed. Hence, the next friend who has filed the suit has no right to maintain the action which which is premature. The plaintiffs are under the care and protection of their mother and not under the next friend. The plaint averment that the plaint schedule items