J U D G M E N T

The dismissal of I.A.No.1/2024, an application for temporary injunction under Order XXXIX Rule 1 of the Code of Civil Procedure, 1908 , by the Additional Sub Court, North Paravur, is under challenge in this appeal filed by the plaintiff in O.S.No.36/2024 on the files of the said court.

2. The suit was one for declaration that the partition deed No.595/2016 of Alangatt S.R.O (Ext.A2) has been created by perpetrating fraud, misrepresentation and illegality; and seeking partition of the suit property. The suit property belonged to Abdul Salam, the deceased father of the plaintiff. After the death of the plaintiff’s father, the said property devolved upon the plaintiff, his mother and siblings and also upon the mother of the deceased by way of intestate succession. It is stated that the mother of the plaintiff’s father obtained 1/6 share over the suit property as per the relevant provisions of intestate succession of Muslim law. The above said ⅙ share obtained by the mother of plaintiff’s father was said to have been gifted (vide Ext.A1) to the husband of the 1st defendant, who was the direct brother of deceased father of the plaintiff. The defendants 2 and 3 are the son and daughter of the 1st defendant. The husband of the 1st defendant, who is now no more, had allegedly executed the impugned partition deed by perpetrating fraud and misrepresentation in the year 2016. The plaintiff would allege that the above person managed to execute the said partition deed in such a manner that he got a share which was about three times the share which he could have obtained considering the fact that the gift deed executed in his favour by the mother of plaintiff’s father was only in respect of the 1/6 share to which she was entitled over the suit property. In the above said partition deed, the mother of the plaintiff is a signatory in her individual capacity as well as in her capacity as the power of attorney holder of the plaintiff. The brother and sister of the plaintiff are also signatories to that partition deed. According to the plaintiff, he had executed a power of attorney in favour of his mother at the request of the husband of the 1st defendant who insisted that a partition of the suit property could be effected so that the shareholders could conveniently enjoy the property. It is also stated that the above request was made by him under the pretext that the allotment of his share would be limited to the 1/6 share gifted to him by the mother of the plaintiff’s father.

The plaintiff has also raised a contention that his brother who had affixed signature as a party to that partition deed, was not having the mental capacity to enter into such a transaction. Thus, the plaintiff would contend that the 1st defendant’s husband (plaintiff’s father’s brother) got executed the aforesaid partition deed by perpetrating fraud and misrepresentation. After the death of the 1st defendant’s husband on 09.08.2020, the defendants 1 to 3 are said to be the legal heirs who are entitled to inherit his property. It is the further contention of the plaintiff that he came to know about the misdeed so committed by the late husband of the 1st defendant only when defendants 1 to 3 made an effort to measure out the property and construct fencing enclosing a larger extent of property as their shares. According to the plaintiff, the partition deed fraudulently executed by the late husband of the 1st defendant was disclosed only at the time when the relatives of the parties and the police intervened in the dispute. It is also stated that, though earnest efforts were made to settle the disputes at the intervention of mediators, all those efforts were in vain. Based on the aforesaid contentions, the suit has been instituted by the plaintiff. In the application filed by the plaintiff along with the suit as I.A.No.1/2024, he had sought a temporary injunction restraining the respondents therein (defendants 1 to 3 in the suit) from making constructions in th