IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN TUESDAY,THE11H DAY OF FEBRUARY201422ND MAGHA, 1935 RFA.No. 164 of 2005 ( ) ------------------------ AGAINST THE ORDER
IN AS1371997 of DISTRICT COURT,THIRUVANANTHAPURAM AGAINST THE JUDGMENT
AND DECREE DATED2511.1996 IN OS1451994 of SUB COURT, ATTINGAL ====================== APPELLANT/1ST DEFENDANT: -------------------------------------------- ABDUL KHADER LABBA MARIAM BEEVI PLAVILA VEEDU, CHERUNIYOOR VILLAGE (CORRECTED AS PALAVILA VEEDU) TRIVANDRUM DISTRICT,REPRESENTED BY POWER OF ATTORNEY HOLDLER, SHAHUL HAMEEDU SAIDU. BY ADV. SRI.M.P.RAMNATH RESPONDENTS/PLAINTIFF & 2ND DEFENDANT & LEGAL HEIRS OF DECEASED PLAINTIFF: ----------------------------------------------------------------------------------------------------------------- 1. AMINA UMMAL, D/O. ABDUL KHADER LABBA PLAVILA VEEDU, VADASSERIKONAM (CORRECTED AS PALAVILA VEEDU) MUDIYACODE DESOM, CHERUNNIYOOR VILLAGE, TRIVANDRUM DISTRICT (DIED).
2. AIYSHA BEEVI, D/O. ABDUL KHADER LABBA -DO- -DO- (DIED) 3. REMLA BEEVI, D/O. ABDUL KHADER LABBA AMINA UMMAL, CHALAVILA VEEDU (CORRECTED AS PALAVILA VEEDU) VADASSERIKONAM, MUDIYANCODE DESOM CHERUNNIYOOR VILLAGE, TRIVANDRUM.
4. RASHEED,S/O. ABDUL KHADER LABBA AMINA UMMAL, -DO- -DO-.
5. NADHEERA, D/O. ABDUL KHADER LABBA AMINA UMMAL -DO- -DO-.
6. ANSARI, S/O. ABDUL KHADER LABBA AMINA UMMAL, -DO- -DO-.
7. NAZEER,S/O. ABDUL KHADER LABBA AMINA UMMAL, -DO- -DO-.
8. NATHIYABEEVI, D/O. ABDUL KHADER LABBA AMINA UMMAL, -DO- -DO-.
9. SALEEMA, D/O. ABDUL KHADER LABBA AMINA UMMAL, -DO- -DO-. RFA NO. 164/2005 -2- 10. NIZAR, S/O. ABDUL KHADER LABBA AMINA UMMAL, -DO- -DO-. IT IS RECORDED THAT THE2D RESPONDENT IN THE APPEAL IS NO MORE AND THAT THE APPELLANT AND THE RESPONDENTS3TO10(ALREADY IN THE PARTY ARRAY) ARE HER LEGAL HEIRS VIDE ORDER
DATED2611.2008 ON THE STATEMENT DATED0811.08 FILED BY THE APPELLANT'S COUNSEL. THE HOUSE NAME SHOWN AS 'PLAVILA VEEDU' IN THE ADDRESS OF THE APPELLANT AND THE RESPONDENTS1AND2AND THE HOUSE NAME SHOWN AS 'CHALAVILA VEEDU' IN THE ADDRESS OF THE RESPONDENTS3TO10STANDS CORRECTED AS 'PALAVILA VEEDU' VIDE ORDER
DATED2611.2008 ON I.A. NO. 5016/2008. R7 BY ADV. SRI.R.ANILKUMAR THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON1102-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SD S.S.SATHEESACHANDRAN,J.
========================== R.F.A. No. 164 of 2005 =========================== Dated, this the 11th day of February, 2014 JUDGMENT
Preliminary decree passed in a suit for partition is challenged in this appeal by first defendant. Two schedules of properties 'A' schedule having two items and 'B' schedule having one item, were involved in the suit for division among the sharers. 'A' schedule items 1 and 2, admittedly, belonged to Mohammed Ibrahim, brother of plaintiff and defendants. B schedule item belonged to Subaida Beevi , sister of the above parties. Mohammed Ibrahim and Subaida Beevi, both of them, had passed away unmarried and parties to the suit alone are entitled to inherit their rights by the R.F.A.164/2005 2 law of succession applicable was the case of plaintiff to seek division and allotment of her share in the plaint items. Suit claim for partition was resisted by the present appellant, first defendant, only with respect to 'A' schedule items 1 and 2. She contended that Mohammed Ibrahim was married, and he loved with his wife and three children in Malaysia. His wife predeceased him and the three children born to him are entitled to succeed to his estate and as such 'A' schedule items are not available for partition was the case of appellant. So far as 'B' schedule item there was no dispute that it is partible among the parties to the suit.
2. Over the partibility of 'A' schedule items challenged adjudication proceeded, but, no material was tendered by the first defendant to sustain her challenge. Though appellant contended that Mohammed Ibrahim had three children in his wedlock and his wife predeceased him, she could not even furnish the names and particulars of the children settled in Malaysia. R.F.A.164/2005 3 In the above circumstances learned Sub Judge concluded that the challenge raised by appellant to resist partition of 'A' schedule items on the premise that Mohammed Ibrahim is survived by his three children cannot be approved. Impeaching the correctness of that finding entered, which resulted in passing of preliminary decree over 'A' schedule items also for division among the sharers the appeal is preferred.
3. I heard the counsel on both sides.
4. After hearing the submissions made by counsel and taking note of the challenge raised by appellant to resist the partition of 'A' schedule items I have provided opportunity to appellant to tender materials, if any, to show that Mohammed Ibrahim has three children who are to be settled at Malaysia. No material was placed. When that be so, I find the challenge canvassed to assail the decree passed by learned Sub Judge cannot be appreciated. If at all Mohammed Ibrahim has three children appellant could have produced some material before court. Item No.1 property in 'A' R.F.A.164/2005 4 schedule was obtained by Mohammed Ibrahim under a registered sale deed in 1989. His death was in 1991. Plaintiff has got a case that he died unmarried.Contesting defendants have contended that he was married his wife predeceased him, and he has three children. When it is noticed that Mohammed Ibrahim had taken a registered sale deed over one of the items in 'A' schedule two years before his death. Naturally appellants, his sister, could have produced material to show that he was married. Mohammed Ibrahim had taken a registered sale deed in 1989 presupposes his presence at that point of time in the country.Further more, perusing the 'B' Diary in the suit, I find when case records were returned after mediation talks parties, all of them, agreed to have partition of the suit properties. In such circumstances challenge raised against the decree filing the appeal reiterating the contentions advanced to resist partition over 'A' schedule items has no merit.
5. Learned counsel for appellant submitted R.F.A.164/2005 5 that in one of the items covered by 'A' schedule she has constructed a building expending her funds. When actual division is given effect to in the final decree proceedings, her occupation over that building may not be disturbed, is the submission of counsel. Whatever equities available to parties can be canvassed in the final decree proceedings and if so canvassed, that has to be considered on its merits and decided by the court. Appeal is devoid of any merit and it is dismissed directing both sides to suffer their costs. Sd/- S.S.SATHEESACHANDRAN JUDGE /true copy/ P.S to Judge tpl/- R.F.A.164/2005 6 S.S.SATHEESACHANDRAN,J.
----------------------- A.S.No.893 of 1996 & CROSS OBJECTION ----------------------- JUDGMENT