SAFIA USMAN Vs. HABEEBAH

JUDGEMENT

(1.) The appellants are the defendants in O.S. No. 321/1998 the suit for partition instituted by the legal heirs of the deceased Usman through his first wife against the second wife and her minor daughter seeking division of the assets allegedly owned by the deceased. The Trial Court decreed the suit, the findings of which according to the appellants are absolutely erroneous so far as appreciation of the facts are concerned and also with respect to the application of the correct propositions of law. A reappraisal of the evidence adduced and reconsideration of the decision is sought for.

(2.) The plaintiffs in the suit, 4 daughters and one son, the descendants of deceased Usman through his predeceased first wife Aysha have sought for partition of 9 items of property and B schedule movables as well as their share of the insurance amount of Rs. 62,000/- received by the 1st defendant as nominee. They have claimed 6/8 shares of the entire assets of Usman who died on 19-07-95. Item Nos. 1 and 2 are in the name of Usman; item No. 3 is in the name of Usman and the 1st defendant i.e. the surviving spouse; item Nos. 4 to 6 also in the name of Usman. Item No. 7 was purchased by the 1st defendant after the death of Usman in pursuance of the sale agreement entered into by Usman. 1st defendant purchased the property from the income derived from Item Nos. 4 to 6, it is alleged. Item No. 8 was obtained by Usman vide partition deed of 1976. Item No. 9 was acquired by the deceased mother of the plaintiffs, i.e. Aysha, the 1st wife of Usman. As Aysha predeceased Usman, he derived 1/4 right in the above property. It is also alleged that the 1st defendant was not sharing the profits from the properties with the plaintiffs. Attempts to settle the matters could not succeed due to the irreconciliably inimical attitude of the 1st defendant. Costs and mesne profits are also claimed.

(3.) The 1st defendant has filed a written statement on behalf of the minor 2nd defendant as well refuting the contentions of the plaintiffs and interspersed with a spate of allegations regarding the hostile attitude of the plaintiffs. It is alleged that the first 4 plaintiffs, the daughters of Usman in Aysha were well provided for by the deceased and given away in marriage with hundreds of sovereigns and fat dowry. On the other hand, with respect to her minor daughter, no provision was made so far for her education and future marital alliance. The house in Item No. 3 was constructed by herself and therein she is residing. According to her, Item Nos. 4 to 6 are not partible as the same were purchased by the deceased with the funds provided by her. The deceased had borrowed money from one Siddhappa amounting to Rs. 2 1/2 lakhs for the acquisition of item No. 6. The same was repaid by the 1st defendant after the death of Usman in two installments. The plaintiffs are liable to adjust the above amount at the time of partition. She has also alleged that a number of immovable items including Ambassador cars, computer etc. owned by the deceased are in the custody of the plaintiffs and the same are also liable to be partitioned. Item No. 7 was purchased by the 1st defendant with her own assets. It is also stated that all the items (except Item No. 7) from which substantial income is derived were in the possession of the plaintiffs. She has also mentioned that 4 acres situated in Tamil Nadu and 2.62 acres in Wayanad district are the assets of the deceased and are liable to be partitioned. The same are scheduled to the written statement.