SAINABA UMMA Vs. MOIDEENKUTTY

JUDGEMENT

(1.) THIS appeal by defendants 2 and 3 is against the preliminary decree for partition of the plaint B schedule items 1, 3 and 5 to 7. The appellants are concerned only with items 3, 4 and 5 and these items, according to them, are not available for partition.

(2.) THE plaintiffs claim partition and separate allotment of 1/3 share in the B schedule items 1 to 7. THE A schedule is the genealogy and the C schedule consists of moveable items wherein also the plaintiffs claimed a 1/3rd share. THE suit was dismissed in so far as it relates to item 2 of the B schedule and the C schedule moveables. THE plaintiffs have filed a memorandum of cross-objections with a petition to condone the delay in filing the same.

(3.) THE decree in regard to item 3 is on the basis of the defendants' admission that it was an acquisition by Hydrose. Hydrose and moideenkutty died issueless. THErefore the Ist defendant was entitled to 2/3rd shares and Ummeri Umma to 1/3rd share. THE plaintiffs as legal heirs of Ummeri umma are held entitled to the 1/ 3rd share that belonged to their mother. THE defendants' case of a lease of this item by Hydrose to the 1st defendant was not accepted as true and Ext. B3 assignment of the leasehold right dated 16-5-1960 by the 1st defendant to the 2nd defendant did not, according to the court below, convey any title to the assignee. Exts. B51 and B52 are not seen adverted to by the court below.