The court ruled that a Power of Attorney and settlement deed were fraudulent, affirming the sons' inheritance rights under Mohamedan law, entitling them to a share of the estate.

JUDGMENT

The present second appeal is preferred by the defendants 1 and 2 against the judgment and decree, dated 29.12.2005, passed in A.S.No.116 of 2002 on the file of the I Additional Sub Court, Nagercoil, confirming the judgment and decree, dated 16.06.2005, passed in O.S.No.129 of 2004 on the file of the Principal District Munsif Court, Nagercoil.

2. The 1^st plaintiff died and the plaintiffs 2 to 5 are the respondents 1 to 4 in the present second appeal. The defendants 1 and 2 in the suit are the appellants herein and the 3^rd defendant is the 5^th respondent herein. For the sake of convenience, the parties are referred as plaintiffs and defendants, as per the ranking in the suit.

3. The suit is filed for partition and separate possession of plaintiffs’ 4/7^th share in the plaint schedule properties by metes and bounds and for declaration that the power of attorney, dated 18.09.2000, registered as document No.489 of 2000 in District Registrar's Office, Nagercoil and the settlement deed No.1239 of 2000, dated 25.09.2000, of Sub Registrar's Office, Boothapandy, as null and void and for permanent injunction restraining the second defendant from making encumbrance in the plaint schedule properties and restraining them from disturbing the peaceful possession of the suit property.

4.The brief facts as stated in the plaint are as under:

4.i) The 1^st and 2^nd plaintiffs and the 3^rd defendant are brothers. The 1^st defendant is their sister and the 2^nd defendant is the son of the 1^st defendant. The 1^st plaintiff died on 18.11.2004 leaving behind the plaintiffs 3 to 5 as legal heirs and they were impleaded as parties. The plaint schedule property belongs to the 1^st and 2^nd plaintiffs’ and 1^st and 3^rd defendants’ and their father namely, Mohamed Mydeen, who died on 16.10.2000. The said Mohamed Mydeen was working in a Mosque and retired from service from January 1999 due to his old age and settled at Thittuvilai along with the 2^nd plaintiff Ameer Ali. The plaint schedule properties are paddy fields which belonged to the father Mohamed Mydeen and were looked after by the 2^nd plaintiff who was cultivating the paddy fields and paying kottahs of paddy to his father Mohamed Mydeen. The deceased father Mohamed Mydeen was living with the 2^nd plaintiff till August 2000 and he left the house for taking treatment for his eyes at Tirunelveli. The 1^st defendant daughter promised to take care of him during the time of treatment. Under that pretext, the 1^st defendant came to 2^nd plaintiff's house to take the wearing apparels and other belongings of the father Mohamed Mydeen from the house of the 2^nd plaintiff.

Thereafter, the father was staying with the 1^st defendant and he used to come to 2^nd plaintiff's house then and there. But suddenly he died on 16.10.2000 at the residence of 1^st defendant. After the demise of the father Mohamed Mydeen, the plaintiffs 1 and 2 and the defendants 1 and 3 are entitled to succeed to his properties under Mohamedan Law. The plaintiffs 1, 2 and the 3^rd defendant being the sons are entitled to 2/7^th share each and the 1^st defendant daughter is entitled to 1/7^th share in the plaint schedule property. After four days of the death and before the plaintiffs could recover from the sudden demise of the father, the 2^nd defendant (son of the 1^st defendant) met the 2^nd plaintiff Ameer Ali at his shop on 20.10.2000 and claimed that he is the sole owner of the plaint schedule property as per settlement deed executed by the 1^st defendant. The 2^nd defendant further stated that the plaintiffs 1, 2 and the 3^rd defendant are having no right in the plaint schedule properties and insisted to surrender the plaint schedule p