MOHAMMED ISMAIL Vs. SHAMSUDDEEN

JUDGEMENT

(1.) This second appeal is filed by the second defendant in a suit for partition. The Trial Court granted a decree for partition subject to reservation of tenancy right claimed by the second defendant. The appellate court found that the reservation of tenancy right in favour of the second defendant is illegal and directed those items also to be partitioned.

(2.) The plaint schedule properties belonged to Asanaru Pillai. The plaintiff and defendants 1 to 6 are the heirs of Asanaru Pillai. Asanaru Pillai died on 31.7.1976. The 6th defendant is his widow and plaintiff and defendants 1 to 5 are their children. After the death of Asanaru Pillai the legal heirs except the second defendant had executed a partition deed dividing the properties between them. The second defendant refused to be a party and contended that Asanaru Pillai has executed a will in his favour giving the properties exclusively to him. Since the second defendant has taken up a stand that all the properties belonged to him, the plaintiff was compelled to file the present suit.

(3.) The defendants 1, 3, 4 and 6 filed written statement supporting the plaintiff and prayed for allotment of 7/40 share to the first defendant and 3rd defendant respectively, 7/80 share to the 4th defendant and 1/8 share to the 6th defendant. The 7th defendant is the wife of second defendant. They filed joint written statement contending that Asanaru Pillai executed a will in favour of the second defendant bequeathing the entire properties in his favour. The plaintiff or other defendants have no right to claim partition. The 5th defendant also supported the contention of the second defendant, but prayed for allotment of her share in the event the will is set aside. The 8th defendant is an assignee from defendants 2 and 7 in respect of 20 cents. He claimed that he has effected valuable improvements and also prayed that in equity the property may be allotted to the share of the second defendant. After the death of the first defendant, the defendants 9 to 13 were impleaded as his legal heirs and 6th defendant was recorded as one of the legal heirs. The 14th defendant contended that he is an assignee of 99 cents subsequently included as item No. 8 in plaint B-schedule and he denied that the plaintiff or defendants have any right in the property. The second defendant also had claimed tenancy right in respect of items 1 and 2 in plaint B-schedule. The Trial Court referred the question of tenancy to the Land Tribunal and the Land Tribunal found the second defendant to be a deemed tenant.