Plaintiffs entitled to 2/3rd share.

S.S. SUBRAMANI, J.

( 1 ) DEFENDANTS in o. S. No. 49 of 1984 on the file of Subordinate Judge, padmanabapuram are the appellants herein.

( 2 ) PARTIES will be referred to in accordance with their rank in the suit in the lower court. Plaintiffs, who are respondents herein filed the suit for declaration of title and recovery of possession of two items of properties more specifically described in the schedule to the plaint. Item No. 1 originally belonged to one padmanabha Pillai and Manoharan Nair. They sold the property in favour of Maria Michaelal mother of plaintiffs by two separate sale deeds dated 27. 9. 1960 and 12. 1. 1961. They are exs. A-1 and A-2 respectively. Item No. 2 belonged to sabarimuthu Nadar and Dominic, who are brothers of Maria Michaelal. They gifted the plaint items to their sister Maria michaelal as per two gift deeds dated 9. 6. 1975 and 11. 6. 1975. They are Exs. A-3 and A-4 respectively. Maria Michaelal died in the year 1976. At the time of her death, she had left behind the plaintiffs and also her husband as legal heirs.

( 3 ) FATHER of plaintiffs Varuvel, sold both the properties as if they belonged to him exclusively, to the defendants in the suit. They obtained possession as per sale deed dated 5. 4. 1979. The said sale deed covered other properties also. After obtaining sale deed plaintiffs who were in possession of plaint schedule items were dispossessed, which necessitated plaintiffs for filing suit for recovery of possession.

( 4 ) THEY claimed mesne profits at the rate of Rs. 2,500 per annum from the date of suit and as past profits they claimed Rs. 7,500. In the written statement filed by the appellants, they contended Exs. A-1 and A-2 were obtained in the name of the Maria Michaelal as benarni for her husband and she did not have any right. In regard to item No. 2, it is said that Varuvel was already in possession of the entire property along with his other properties adjoining the same and item No. 2 was only formal document. It is also said that father of plaintiffs put up pucca construction and compound walls around the property and it was thereafter, he sold, the properties to the appellants as per Ex. A

5. According to the appellants, plaintiffs have no right over the property and the suit is liable to be dismissed.

( 5 ) ON the above pleadings, lower court raised five issues and evidence was also taken. Oral evidence consist of P. W. 1 first plaintiff and D. W. 1 first defendant. Exs. A1 to A-5 were marked.

( 6 ) AFTER elaborate discussion of evidence, lower court came to the conclusion that the properties absolutely belongs to Maria michaelal and the claim of benami cannot be accepted and defendants are even prevented from putting forward such a plea when even the executor of document did not have a claim of benami. Even otherwise on merits, it was held that Maria Michaelal was the real owner of the property. It further came to the conclusion that plaintiffs father who is the husband of the acquirer has l/5th right under the provisions of Travancore christian Succession Act and subject to his right, plaintiffs are entitled to have their title declared. Plaintiffs were allowed to recover the properties with mesne profits and defendants were permitted to work out their remedy in so far as their l/5th share, which the plaintiffs father had and alienated to the appellants. It was also declared that plaintiffs are also entitled to mesne profits and the matter was relegated to further enquiry under Order 20, rule 12 of Code of Civil Procedure. It further held that the claim of appellants that plaintiffs father put up construction and compound wall, etc. is false and mischievous claim and therefore was not entitled to any value of construction. Parties are directed to suffer their costs. It is against the said decree and judgment, defendants have preferred this appeal.

( 7 ) I heard the counsel on the both sides. Learned counsel for appellants contended that the decision of lower