KUNHAMI Vs. KUNHAMMAD

JUDGEMENT

(1.) THE plaintiff in O.S.No.1024 of 1961 of the Munsiff's Court of Nadapuram is the appellant.The suit was one for partition and separate possession of the plaintiff's share. The plaint schedule properties belonged to one Moideen,the father of the plaintiff and defendants 1 to 3.They were gifted by him to the plaintiff and defendants 1 to 3 when they were minors,as per Ext.A -1,dated 24th September 1931.Their mother,the 4th defendant,was constituted guardian in the document.On the same day,Moideen executed an assignment deed,Ext.A -6,in favour of his wife,the 4th defendant,conveying about 30 items of properties.According to the plaintiff,she is entitled to¼th share in all the properties including item 6.Item 6 was purchased by Moideen in the name of the 4th defendant at court auction.The 4th defendant was only a benamidar for Moideen.

(2.) DEFENDANTS 1 to 4 opposed the plaintiff's claim to a share in item No.6.The 4th defendant denied that she was only a benamidar in respect of item 6 and contended that the property was her self -acquisition and that the gift could operate only regarding the other items.The gift was not acted upon so far as item No.6 was concerned.

(3.) TWO questions arise in this second appeal,one the question of fact whether item No.6 was purchased by Moideen benami in the name of the 4th defendant and the other a question of law whether the 4th defendant could successfully resist the suit under section 66(1)of the Code of Civil Procedure.