BEEPATHUMMA Vs. MOHAMED NAKOOR MEERA ROWTHER

JUDGEMENT

(1.) THAT the plaintiff is entitled to 3/8 share> in the properties left by his consanguine brother, Muhammad Ghani Rawther, is not disputed before us. The dispute is as to whether Muhammad Ghani Rawther left behind him any properties in which the plaintiff could claim 3/8 share. According to the plaintiff the four documents, Exts. B-1, B-4, B-6 and B-7, could not operate on the properties of Muhammad Ghani Rawther for two reasons, namely, that those documents evidence gifts in violation of the Muslim Law and that those documents, if at all executed, have been executed by Muhammad Ghani rawther at a time when he was not mentally competent to execute the same. The lower court accepted the plaintiffs case and passed a preliminary decree for partition and defendants Nos. 2 to 4 have come up in appeal. The first defendant died while the suit was pending trial before the lower court.

(2.) THE first defendant is the widow of deceased Muhammad Ghani Rawther who died on 18th December 1966; the 2nd defendant is the daughter of the first defendant and Muhammad Ghani Rawther; the 3rd defendant is the second defendant's husband; the 4th defendant is a distant cousin of Muhammad Ghani rawther; the 5th defendant is the brother of the 1st defendant in whose favour the first defendant has assigned suit item Nos. 6 and 7 as per Ext. B-5. The 5th defendant died pending suit and defendants Nos. 6 to 12 are his legal representatives.

(3.) EXTS. B-1, B-4, B-6 and B-7 are documents all dated 3rd October, 1966, a couple of months prior to Muhammad Ghani Rawther's death. The 2nd defendant claimed item Nos. 1 to 5 under Ext. B-l document; the 1st defendant, the widow, claimed item Nos. 6 and 7 under Ext. B-4; these items are now claimed by defendants 6 to 12, the legal representatives of the 5th defendant under Ext. B-5; the 4th defendant claimed item 8 under Ext. B-6; and the 3rd defendant claimed item No. 9 as per Ext. B-7. While according to the contesting defendants these documents evidence valid gifts in favour of the respective executees. according to the plaintiff there was no gift in so far as no rights in respect of those properties got vested in the respective executees. At any rate, according to the plaintiff possession of the properties has not been handed over or delivered over to the respective executees.