MOHAMEED HANEEFA Vs. SALIM

JUDGEMENT

(1.) Appellants in R.S.A-No. 1373/2004 are Defendants 1 to 6 in O.S. No. 311/1992 on the file of Sub Court, Attingal. They are the Plaintiffs in O.S. No. 189/1992. R.S. A. No. 147/2005 is filed challenging the concurrent judgment and decree in O.S. No. 189/1992. Respondents 1 and 10 were the original Plaintiffs in O.S. No. 311/1992. Subsequently, tenth Respondent was transposed as Defendant No. 17. Respondents 2 to 9 are Defendants 7 to 13 and 15 in O.S. No. 311/1992. O.S. No. 311/1992 was filed seeking a decree for partition of the plaint schedule properties and separation of the share of the first Respondent. Appellants filed O.S. No. 189/1992 seeking a decree for declaration of their title, possession and for permanent prohibitory injunction on the strength of Exhibit B2 will. Plaint schedule properties in O.S. No. 189/1992 was only four items of the properties involved in O.S. No. 311/1992. Plaint schedule properties in O.S. No. 311/1992, apart from the properties involved in O.S. No. 189/1992, includes the property scheduled as Item Nos. (a) to (m). Plaint schedule properties originally belonged to Appi Kunju Meera Sahib. Second Appellant and second Respondent in R.S. A.N0.1373/2004, namely, Defendants 2 and 7, were admittedly the widows of Meera Sahib. Appellants 1 and 3 to 6 are the children of Meera Sahib in the second Appellant. Respondents 1 to 3 and 10 are the children of Meera Sahib in second Respondent. They are respectively the Plaintiff and Defendants 7,8 and 17 in O.S. No. 311/1992. O.S. No. 311/1992 was filed seeking partition of the plaint schedule properties contending that plaint schedule properties are available for partition as they originally belonged to Meera Sahib and his rights devolved on his legal heirs under Mohammedan Law. Defendants 9 to 16 (Defendants 14 and 16 were subsequently removed) were impleaded as the building tenants and they have no right in the property. O.S. No. 189/1992 was filed contending that Meera Sahib executed Exhibit B2 will 7/1978 on 12.3.1978 whereunder, he bequeathed the plaint schedule properties in O.S. No. 189/1992 in favour of Appellants and therefore, Appellants alone have right in the said properties. Appellants sought declaration of title and possession over the said properties and sought a decree for injunction restraining Respondents in R.S.A.N0.147/2005 from trespassing into the plaint schedule properties. They resisted the claim for partition raising similar contentions. Based on Exhibit B2 will, it is contended that in view of Exhibit B2 will, said properties are not available for partition. Learned Sub Judge tried both the suits jointly. O.S. No. 311/1992 was treated as the main case. Evidence consists of Exhibits Al to A14, B1 to B20 and Exhibit C1 and oral evidence of P Ws 1 and 2 and D Ws 1 to 5.

(2.) Learned Sub Judge, on the evidence, found that Exhibit B2 will was not revoked by tearing into pieces as claimed by Respondents 1 to 3. Learned Sub Judge also found that Exhibit B2 is a will and not a gift as contended by the Appellants and could take effect only on the death of Meera Sahib on 4.12.1990. Learned Sub Judge found that on the date of execution of Exhibit B2 will, namely, 12.3.1978, Meera Sahib executed Exhibits B3 and B4 gift deeds in favour of Respondents 1 and 10 and the property bequeathed under Exhibit B2 exceeds one third of the assets left behind by the deceased. Learned Sub Judge also found that as provided under Section 117 of Mohammedan Law, the bequest under ExhibitB2, to become valid against Respondents 1 to3and 10, legal heirs shall give their consent and from the fact that after the death of Meera Sahib, within one month O.S. No. 311/1992 was instituted (originally instituted as O.S. No. 14/1991) it is clear that there was no consent by them after the death of the testator and therefore, Exhibit B2 will not operate as against their rights. Learned Sub Judge also found that as the bequest exceeds one third of the assets as provided under Section 117 of Mohammedan Law, consent of the legal heirs is necessary and as Respondents 1 to 3 and 10 did not give their consent, the bequest is not valid. Learned Sub Judge, therefore, found that Appellants cannot claim title to the plaint schedule properties under Ext.B2 and they could claim their share only as the legal heirs of deceased Meera Sahib. Finding that plaint schedule properties are available for partition, a preliminary decree was passed. O.S. No. 189/1992 was dismissed. Appellants challenged the judgment and decree before III Additional District Court, Thiruvananthapuram in A.S . Nos. 227/2001 and 228/2001. Learned Additional District Judge, on re-appreciation of evidence, confirmed the findings of the learned Munsiff and dismissed both the appeals. These appeals are filed challenging the concurrent judgment and decree passed by the courts below. R.S.A.N0.1373/2004 is filed challenging the decree and judgment in O.S. No. 311/1992 and R.S.A. No. 147/2005 challenging the decree and judgment in O.S. No. 189/1992.

(3.) Appeals were admitted formulating the following substantial questions of law: