SAINABI Vs. ABOOBACKERKOYA

JUDGEMENT

(1.) These three appeals are filed against the judgment and decree in O. S. No. 9 of 1974 of the Subordinate Judge's Court, Lakshadweep, Kavarathi. In A. S. No. 550 of 1983, the appellants are the plaintiffs, while A. S. No. 554 of 1983 is an appeal filed by defendants 4, 5 and 8 to 13. A. S. No. 11 of 1984 is filed by the first defendant. The suit, O. S. No. 9 of 1974 was filed by four plaintiffs. Plaintiffs 1 to 3 are the daughters of one Ponthinoda Ummubee and the fourth plaintiff is the son of Ponthinoda Attakoya, who is the brother of plaintiffs 1 to 3. The suit was filed for declaration of title and for recovery of possession of the plaint schedule properties with mense profits after setting aside the compromise dated 24.7.1961. The suit was dismissed. However, certain findings were entered and the plaintiffs were declared to be entitled to 1/3rd share. It was found that all the necessary parties were not impleaded and a right to file a fresh suit for partition was reserved. It is against the above judgment and decree that the appeals have been filed.

(2.) The case of the plaintiffs is as follows: The parties in the suit belong to Agathi Island of Lakshadweep and the properties are situate in the said Island. The suit properties consist of six items of immovable properties including a Mosque and a residential building in item No. 1. According to the averments in the plaint, these properties belonged in jenmam to one Ahammed Koya (hereinafter referred to as Ahammed Koya No. I) of Vadakilapura. The said Ahammed Koya No. 1 married Ayshabee, who belonged to Aliyankunhamada. They had a daughter by name Kunhabee (No.1). According to the plaintiffs, Ahammed Koya gifted these properties to Kunhubee and the properties are Thinkalazhcha properties of Kunhubee. By subsequent devolution, these properties vested in Hassankutty Haji as his Thinkalazhcha properties. After his death, the properties devolved on his shariat heir, i.e., his daughter Ponthinoda Ummubee. The plaintiffs are the children of the said Ponthinoda Ummubee through their father Cheriya Koya. On the death of their mother Ummubee, the plaintiffs claimed the entirety of the properties as having devolved on them as her Shariat heir. The case of the plaintiffs is that even during the life time of Hassankutty Haji and after his death, the properties were being managed by their father Cheriya Koya, who is also a grand nephew and power of holder of Hassankutty Haji. So long as Cheriya Koya was alive, these properties were in their possession and enjoyment. Cheriya Koya died in 1951. Thereafter, his brothers Mohammed Koya and Ahammed Koya II attempted to trespass and take possession of the properties illegally. Thus, the mother of the plaintiffs, Ummubee filed a suit as C. S. No. 48 of 1952 against Ahammed Koya II, Muhammed Koya and Kunhubee II. As per the direction of the Court, on the death of Ummubee, plaintiffs 1 to 3 along with their brother Attakoya filed another suit, C. S. No. 95 of 1959 against Ahammed Koya II and Kunhubee II. While that suit was pending, a compromise was brought into existence fraudulently and collusively by the second defendant and others. The plaintiffs were not parties to the compromise nor were the plaintiffs aware of the same. As per the compromise, the properties made to vest as being reverted to Aliyankunhimada tarwad as their Velliyazhcha properties. According to the plaintiffs, the compromise is wholly void and ineffective. The plaintiffs' suit was dismissed on the basis of the compromise with a direction to file a fresh suit against the persons in possession of the property. Then the plaintiffs filed O. S. No. 83 of 1961 before the Ameen, Agathi. After several proceedings, O. S. No. 7 of 1974 was filed. The plaintiffs had prayed for declaration of their title to the suit properties, setting aside the Razi and for recovery of possession of the properties with mesne profits.

(3.) The suit was resisted by the first defendant contending that the properties are not Thinkalazhcha properties in the hands of Hassankutty Haji. According to him, it was their thavazhy Velliyazhcha properties in the hands of Hassankutty Haji and it devolved on the marumakkathayee heirs through his sister Beekuttybee. The properties devolved on the daughter of Beekuttybee, viz., Attabee and her children Cheriya Koya, Mohammed Koya and Ahammed Koya II and Kunhubee II. Kunhubee II died without any heirs and as Cheriya Koya and Mohammed Koya also died, Ahammed Koya II was the last surviving member of Vadakilapura. Hence, Ahammed Koya II is entitled to these properties and it is his Thinkalazhcha properties. The first defendant is the eldest son of Ahammed Koya II. He was living along with his wife with Ahammed Koya II. While so, Ahammed Koya II orally gifted the entire plaint schedule properties to him and he is therefore entitled to the whole of the properties. While so, the properties were taken possession of from him by receiver and on the cancellation of the appointment of receiver, the receiver handed over possession of the properties to other defendants on the basis of the Razi. He had also filed a suit before the Amin's Court, which was tried along with the suit filed by the plaintiffs and according to him, the entire properties belong to him under the oral gift of his father.