VEEVI UMMAL MAIMOONUMMAL Vs. SALMA UMMAL

JUDGEMENT

(1.) This is a Second Appeal by defendants 1 and 8 and it arises out of a suit for partition. The parties are Mohamedans. The plaintiffs sued for 2/12th share in the plaint properties (1/12th for 1st plaintiff and 1/12 for the other plaintiffs). As regards item No. 1, 1/12th was claimed on the allegation that the property belonged to Kunju Beevi Ummal and that on her death .one-fourth of it devolved on her husband Pakeer Mahomed. What was claimed was one-third of this one-fourth for the 1st plaintiff and a similar share for the other plaintiffs. The Trial Court found that the property belonged to Pakeer Mahomed and that the 1st plaintiff was entitled to one-third of the whole of item No. 1 and the other plaintiffs to an equal share. The plaintiffs were given a decree on this basis. This part of the decree was confirmed in appeal. The lower appellate court however modified the decree by allowing the 1st defendants claim for Rs. 300/- spent for the funeral expenses of Pakeer Mahomed. Defendants 1 and 8 have preferred this Second Appeal from the decree of the lower appellate court.

(2.) The first point urged on behalf of appellants was that the 1st defendant should be allowed to amend her written statement. An application (C.M.P. No. 299 dated 22-7-1957) was filed praying for such permission. I have dismissed the same by a separate order.

(3.) The point strenuously pressed before me was that the decrees are in excess of the plaint claim and are therefore contrary to law. The argument is that the courts below were not justified in granting a decree for 2/3rd of item