ACHAMBAT ABDUL RAHIM Vs. ACHAMBAT KUNHALIKUTTY HAJI

JUDGEMENT

(1.) O.S. No.85 of 1993 was a suit filed before the Sub Court, Tirur for partition and separate possession of the properties scheduled in the plaint. A preliminary decree for partition was passed by the learned Subordinate Judge on 30/1/1997. Assailing the said judgment and decree, the plaintiff had preferred A.S No.507/1997. The 1st defendant had filed A.S. No. 219 of 1997 and the 5th defendant had filed A.S. No. 584 of 1997.

(2.) For the sake of convenience, the parties are referred to as per their status before the trial court.

(3.) It is the case of the plaintiff that the plaint schedule item Nos. 1 to 7 originally belonged to Achambat Kunhalikutty Haji, the father of the plaintiff and the defendants 1 to 5. Kunhalikutty Haji had married thrice. His first wife was Kunhipathi Umma. The 1st defendant was born to them in the said wedlock. Later he divorced her and married another lady viz Thithi Umma (defendant No.8) and one son was born to them by name Muhammed Ali. Kunhalikutty Haji then divorced her and married one Pathukutty Umma. The plaintiff and the defendants 2 to 5 are the children born to them in the said wed lock. Kunhalikutty Haji expired on 25/1/1985. His wife Pathukutty Umma expired on 7/1/1993. Before her death, i.e., on 20/4/1986 Muhammed Ali, the son of Kunhalikutty Haji and Thithi Umma expired. Defendant No.6 is the daughter of Muhammed Ali and the 7th defendant. The 7th defendant, his wife, remarried after five years of his death. The plaintiff had claimed partition of the plaint schedule item Nos. 1 to 7 among the legal heirs of Kunhalikutty Haji. It is contended by the plaintiff that the claim raised by the 5th defendant over item No. 1 property placing reliance on a will deed is not correct as the will deed is against Islamic law and therefore invalid. So item No.1 is also liable to be divided among the legal heirs. The buildings in Item Nos. 2 and 3 constructed by the father and rented out to the tenants including the State Bank of India, Parappanangadi Branch are also partible among the parties along with the other properties.