P KUNHEEMA UMMA Vs. P AYISSA UMMA

JUDGEMENT

(1.) The 1st defendant in O. S. No. 208 of 1970 on the file of the Munsiff of Manjeri is the appellant in the second appeal. The suit was one for partition and separate possession of plaintiff's 2/9 share in the plaint schedule property by declaring that the plaint schedule property belonged to the plaintiff and defendants jointly and that the alleged gift deed in favour of the 1st defendant and sate deed in favour of defendants 4 and 5 were invalid in law. The Trial Court has passed a preliminary decree for partition as prayed for with respect to items 1 to 9 in the plaint schedule. Though the 1st defendant carried the matter in appeal, by the judgment in A. S. No. 39 of 1974 the Subordinate Judge of Manjeri has confirmed the preliminary decree passed by the Trial Court; hence this second appeal.

(2.) It is not in dispute that plaint schedule Items 1 to 9 belonged to Mammad, the father of the plaintiff and defendants 1 and 2. Item 10 also admittedly belonged to the said Mammad, and the challenge in the suit was that the alienation in favour of the defendants 4 and 5 ought to be set aside and that item also should be made available for partition. The Trial Court has upheld the validity of the document under which the alienation in respect of Item 10 was effected by the said Mammad in favour of defendants 4 and 5. That finding is not under challenge in this second appeal, and herein we are concerned only with Items 1 to 9.

(3.) The said Mammad who admittedly was a widower died on 5-6-1970 leaving behind the plaintiff and defendants 1 and 2 who were his daughters and the 3rd defendant, the son of his brother as his legal heirs. The suit is seen to have been filed on 8-7-1970, nearly one month after the death of the said Mammad, the plaintiff claiming a share in Items 1 to 19 ignoring Ext. B1 gift deed alleged to have been executed on 9-3-1970 in favour of the 1st defendant by her father and the said deed executed in favour of defendants 4 and 5 in respect of Item 10.