HABEEB THAZHAVADAKKAYIL Vs. KUNHAMI

JUDGEMENT

(1.) This Second Appeal has been preferred by the 2nd respondent in A.S.31/2014 on the file of the Subordinate Judge of Vatakara, who is the 2nd defendant in O.S.190/2012 on the file of the Munsiff's Court, Nadapuram against the judgment and decree of the 1st Appellate Court dtd. 25/9/2015 allowing the appeal and decreeing the Suit. For the purpose of convenience, the parties are hereafter referred to as per their rank in the trial Court.

(2.) The plaintiff filed this suit seeking partition and separate possession of one-third share from the plaint schedule property. The plaint schedule property originally belonged to Vadakkayil Aysu who died leaving the plaintiff and the 1st defendant who are her children and 2nd defendant, who is the son of her pre-deceased son Ammed as her legal heirs. According to the plaintiff, after the death of Aysu, she along with defendants 1 and 2, are the legal heirs of Aysu and therefore, she prayed for a decree for partition.

(3.) According to 2nd defendant, Aysu orally gifted the plaint schedule property to her son Ammed. He had accepted the gift and was also paying land tax for the said property. On the death of Ammed on 22/11/2004, the 2nd defendant became the absolute owner of the plaint schedule property and as such, according to the 2nd defendant, the plaint schedule property is not partible and that the plaintiff and the 1st defendant are not entitled to get any share from it.