ABDUL SUBHAN Vs. KHYROONIBI

JUDGEMENT

(1.) this appeal is by the first defendant. The plaintiff had sought for partition and possession of certain properties from the first defendant after declaring that she isentitled to l/3rd share in the suit schedule properties. According to the plaintiff, sheis the step sister of the first defendant, both of them being the children of late abdulsattar.

(2.) it is seen that there is no dispute in this appeal, as to facts which are as follows: mohamed budan sab (also referred to as sheik budan sab) was the commonancestor. He had three sons, viz., mohamed hayat, mohamed abbas and abdulsattar. Abdul sattar had a wife-sharifabi - through whom he got a son abdulsubhan, defendant No. 1. He had a second wife chandbi through whom he got theplaintiff khyroonbi as a daughter. Abdul sattar died several years ago during thechildhood of his children. The common ancestor budan sab died after the death ofhis son abdul sattar. To reiterate, on this aspect there is no dispute and the plaintiffalso admits in her evidence that her father pre-deceased her grand-father. Theplaintiff and the first defendant were living jointly with her uncles mohamed hayatand mohamed abbas. Subsequently the plaintiff was married and in the meanwhile,the first defendant was also engaged in operating jataka. Budan sab had left someproperties behind him and as already noted, even after his death, his two sons and thegrand children, i.e., the plaintiff and the 1st defendant were all living jointly underthe same roof for a long number of years. Obviously some dispute must have arisenin the course of time between the first defendant and his uncles.

(3.) on 30lh june, 1962 the original of exhibit p-l came to be executed. The first defendant purported to execute a release deed releasing his rights in the propertiesleft by budan sab in exchange for a few properties given to him by mohamed hayatand mohamed abbas. The document was signed only by the first defendant andmohamed hayat. The deed recites that the properties were ancestral properties(fcss/sri) and the said properties are being enjoyed without partition all along andthat the first defendant was entitled to 1/3rd share and ultimately the first defendantexecuted the said release deed in favour of others in respect of the properties otherthan the one which were given to him as stated in exhibit p-l.