PENTAMVELIPPURA SHAIK KOYA Vs. SEKKUMMADA SYEDKOYA

JUDGEMENT

(1.) THIS appeal is preferred against the judgment and decree passed by the District Court, Lakshadweep in O.S.No.51 of 1997. The suit is one for cancellation of a Will, declaration and possession. The trial court, on consideration of the materials, dismissed the case in relation to the setting aside of the document but granted a decree with respect to the amount in deposit by allotting 2/3 share to the plaintiffs and 1/3rd share to the defendants.

(2.) THE brief facts necessary for the disposal of the appeal are stated as follows: THE common ancestors are one Kunhibi and her husband Shaik Koya. THEy had three children, viz., Attabi, Ayishabi and Koya. THE children of the said Koya are the plaintiffs in the suit. Attabi and Ayishabi died issueless. Kunhibi had married one Attakoya in which a son and a daughter were born. THE first defendant is the son of Kunhibi born in Attakoya. Defendants 2 to 6 are the children of the daughter born to Kunhibi in Attakoya. 7th defendant is the daughter of the 3rd defendant. THEre was a partition suit O.S.No.1/1985 which was filed by the first defendant herein against Attabi and others, wherein the present first plaintiff was the 9th defendant. THE present plaint A schedule property was set apart to the share of Attabi and plaint B schedule property i.e., 1/7th of the property set apart to the share of Attabi and others in common. Since Attabi died issueless plaintiffs are claiming right under the Mohammedan Law. According to them, a document Ext.A8 executed by Attabi in favour of defendants 3 and 7 are vitiated by coercion and undue influence and further that more than 1/3rd of the property cannot be given away in a Will and therefore with respect to the excess, the document is invalid.