HYDROSE Vs. AYISUMMA

JUDGEMENT

(1.) THE first defendant in a suit for partition is the appellant.He and plaintiff are the children of one P.P.Ahammed Sahib and Biyyathukutty Umma.They had two other children,a daughter by name Pathavu Umma and a son by name Kunhammad.Father died on 21st December 1958,mother in 1936,Pathavu Umma on 30th September 1955 and Kunhahammad on 28th January 1972.The 2nd defendant is the widow of Kunhahammad and defendants 3 to 5 are the children of Pathavu Umma.The parents of the plaintiff and the first defendant had movable and immovable properties.After their death,the plaintiff,1st defendant and Kunhammed entered into a partition deed Ext.A1 dated 18th November 1961.As per that partition deed,'A 'schedule properties were set apart to Kunhahammed,B schedule properties to the first defendant and C schedule to the plaintiff.Kunhahammad did not join that document.He filed O.S.No.45 of 1962 on the file of the Ottapalam Sub Court for partition of all the properties left by his parents ignoring Ext.A1.The matter appears to have been compromised and the first defendant herein who was the first defendant there also filed I.A.No.915 of 1963 for recording a compromise between him and deceased Kunhahammad.The compromise was recorded and suit was dismissed on 3rd August 1965 as per judgment Ext.A4.Kunhahammad filed A.S.No.429 of 1965 in this Court against that decision.It was subsequently dismissed for want of prosecution.The plaintiff was not a party to Ext.A4 compromise.The properties set apart to Kunhahammed under Ext.A1 are items 8 to 17.According to the plaintiff,the first defendant trespassed upon these properties and after that they are in his possession.The contention that items 1 to 7 were dedicated by his father in Wakf and therefore not available for partition is denied.Her case is that they are not Wakf properties,that the document of Wakf put forward is not valid,that it was not acted upon,that the father was in possession of these properties till his death and that he dealt with them as his own.Item 18 belonged to the mother.The plaintiff claimed 3/10 shares in items 1 to 7 and 1/4th shares in items 8 to 18.

(2.) THE contention of the first defendant in his written statement is that the suit is not maintainable as it is barred on account of the decision in O.S.No.45 of 1952,that items 1 to 7 are Wakf properties and hence not partible,that he is in possession of these items only as the Muthavally,that item(8)belonged to the plaintiff and that he is not in possession of items 8 to 17 and that he is not liable for mesne profits.

(3.) WHEN this appeal c ame up for hearing,the appellant's counsel represented to us that he had filed an application for reception of additional documents to establish his case that items 1 to 7 were Wakf properties and that items 8 to 17 had been assigned away by Kunhahammed to strangers.The only reason given in the affidavit field along with C.M.P.No.20054 of 1977 for non -producion of the documents in the Court below is that it was not intentional and that they could not be produced despite due diligence and care.We not satisfy that the reasons given in the affidavate are either convincing or satisfactory.However,since the first defedant has put forward a case that items 1 to 7 are Wakf properties,Wakf having been created by a documents of 1934,which document was not produced before the trial Court and a consideration of which document will be extremely necessary for an adjudication of the rights in items 1 to 7,We think it necessary to admit this document.It is admitted in evidence and is marked as Ext.C -1.The application for reception of the documents is otherwise dismissed.