VARAMBAMURIYANTAKATH KATHEESUMMA Vs. KALARIKKAL PULLAIKUDI ANANDAN NAMBIAR

JUDGEMENT

(1.) Defendants 1 and 2. in O.S.No.258 of 1995 on the file of the Sub Court, Payyannur, are the appellants. Suit is filed for partition claiming 36/128 shares in the plaint schedule property. The court below passed a preliminary decree declaring the share claimed by the plaintiff. The parties are hereinafter referred to as the plaintiff and defendants as arrayed in the suit.

(2.) The suit is for partition of the plaint schedule property in to 128equal shares and to allot 36 such shares to the plaintiff with future mesne profits. The plaint schedule property with the house therein originally belong to Kattikoottathil Ammad. Plaintiff also claimed damages from the defendants on the allegation that the defendants cut and removed a jack tree situated in the property. The plaint schedule property herein is the A schedule property in the registered Will dated 21-2-1918 marked as Ext.B-1 in this case.A schedule property in Ext.B-1 Will is bequeathed in favour of his first wife Pathumma, his daughter Ayisumma and in favour of the children of Ayisumma born to Ali, her husband. Pathumma died and her daughter Ayisumma also died later. Ayisumma has got three children by name, Muhammed Kunhi, Kathisumma and Nafisurnma. Katheesumma is the first defendant. Muhammed Kunhi is no more. Muhammed Kunhi has got five children. Defendants 3,4 and 5 are the three children of Muhammed Kunhi. The others are not made parties to the suit. His two sons Alikunhi, Abdulkharim and Kunhammed Kunhi 's wife have executed Ext. A-1 assignment deed in the year 1993 assigning their shares in favour of the plaintiff. Nafeesumma has got five children. The second defendant is one of her children. The other children are not made parties. The geneological table produced by the appellants' counsel extracted below shows the number of members in the tavazhi and their relationship to the parties. Kattikoottathil Ammad = Puthumma | Ayisumma (Daughter) Muhammld Kunhi Khatisurrima Nafeesumma. (Died) (D-1) kunhi Ayisha Suhara Muhammed Abdul Alikunhi , Mariyumma Pathumma Aysha Abdulla (W) (D-3) (D-4) Basheer Kareem (D-2)(D.W.1) (NP) (Died-NP) (NP) (NP) (D5) | 8 Children Fathima Amina Sainaba Musthaffa (NP) (NP) (NP) (NP) 8 Children 2 Children Suhara 4 Children NB: Muhammed Kunhi's 3 legal heirs assigned thier right in favour of the plaintiff (NP) Not Party The geneological table extracted above shows that there are 34 numbers in the Tahavazhi as on today. Kathisumma has got four children by name Fathima, Amina, Sainaba and Musthaffa who are not parties to the suit and that Fathima has got 8 children and Amina 2 children. The children and grant children of Kathisumma are not made parties to the suit. Similarly, Nafeesurnma's three children were not made as parties.

(3.) The case of the plaintiff is that the property belonging to Kattikottathil Ammad was bequeathed in favour of his wife and daughter, namely, Ayisumma; they were in possession and enjoyment of the plaint schedule property which is scheduled as A in the Will; subsequent to the death of Pathumma the whole property devolved on her daughter Ayisumma; after Ayisumma's death the property devolved to her three children, namely, Muhammed Kunhi, Kathisumma andNafeesumma. It is further pleaded in the plaint that Muhammed Kunhi and defendants 1 and 2 obtained purchase certificate relating to the property as per the order in O. A.No.3 817/76 from the Land Tribunal, Thaliparamba; that after Muhammed Kunhi's death his 2/4 share in the property devolved on his wife and children. The plaintiff obtained Ext. A-1 assignment deed dated 29-1-1993 executed by the wife and two children of Muhammed Kunhi and thereby the plaintiff obtained 36/128 share in the plaint schedule property. Plaintiff also claimed Rs.20,000 as damages contending that defendants cut and removed one jack tree from the plaint schedule property. The value of the tree come to more than Rs.20,000. Learned counsel for the appellants submitted that going by the evidence of D. W. 1, first defendant, including her there are 19 members in the line of Kathisumma, 14 members in the line of Nafeesumma and including Mohammed Kunhi, there are 34 members in the family.