MANAPPURATH ABDULLA Vs. ASSIYA

JUDGEMENT

(1.) The appellant in both these appeals is the first defendant in OS No. 40 of 1994 of the Subordinate Judge's Court, Quilandy. The suit was one for partition. A preliminary decree was passed and partition and separate possession of 1/7th share of the plaintiff in the suit was granted. Similarly, the shares to which the defendants are entitled were also fixed. The parties are Muslims and as per Hanafi Law of Succession applicable to them, the first defendant being the son is entitled to get double the share of a daughter. The share of the first defendant was fixed as 2/7 and the shares to each one of the defendants 2 to 5 is also fixed as 1/7, as that of the plaintiff.

(2.) The plaintiff has applied for the passing of the final decree through IA No. 780 of 1996 before the Court below. The actual extent of the property available for partition is 8.63 cents as per the Commissioner's report and plan. The Commissioner has reported that the property cannot be partitioned by metes and bounds, as there is a residential building in that property. The first defendant filed IA No. 688 of 1997 in the final decree application claiming that he may be permitted to purchase the shares of the other co-owners. Similarly, the plaintiff filed IA No. 944 of 1997 in the final decree application for permitting her to purchase the shares of the other co-owners including the present appellant. The Court below, through the impugned common order, has disposed of both the said IAs and ordered that the plaint schedule property has to be sold among the sharers, to the sharer who offer the highest value, and the sale proceeds shall be distributed to the sharers in the proportion of their respective shares. The first defendant, aggrieved by the said order, has come up in appeal.

(3.) Heard Shri. P. Rahul, learned counsel for the appellant and Smt. Shameena Salahudheen, the learned counsel for the respondents.