SAINABA UMMA & ANOTHER Vs. MOIDEENKUTTY AND OTHERS

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, according to them, are not available for partition. 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 she C schedule consists of moveable items wherein also the plaintiffs claimed a l/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.

(2.) ACCORDING to the plaint items 1,4,5, and 6 belonged in tenancy slights to the plaintiffs' grandfather Saidali Rowther and item 2 to his eldes on Hydrose. Saidali Rowther had four sons namely Hydrose, Abdu Rahiman, Moideenkutty and the 1st defendant and a daughter Ammu @ Ummeri Umma. Hydrose, Abdu Rahiman and Moideenkutty died issueless and the properties devolved on the 1st defendant and Ummeri Umma. Ummeri Umma died in 1974 The plaintiffs are the children entitled to the share due to Ummeri Umma. The 2nd defendant is the daughter of the 1st defendant and the 3rd defendant is her husband. Defendants 2 and 3 are impleaded in the suit on the contentions raised by the 1st defendant. Except for the inclusion in the plaint there is no reference to the plaintiffs' right to partition of items 3 and 7. Defendants 2 and 3 claim exclusive title to items 2 to 5 and the 1st defendant claimed title to items 1, 6 and 7. Since the appeal relates only to items 3, 4 and 5, it is not necessary to refer to the contentions of the defendants in regard to the other items According to the defendants item 3 is 2 paras seed area of land in Sy. No. 88/2 having a total extent of 3.33 acres. This item belonged to deceased Hydrose who bad granted a lease of the same to he 1st defendant on a 'munpattom' of Rs. 300/ - and rent Rs. 298/ - and 368 paras of paddy. The 1st defendant had by Ext. B3 sale deed dated 16 -5 -1960 assigned his (sic) rights to the 2nd defendant. The 2nd defendant had applied for and obtained Ext. B52 order of the Land Tribunal, Sreekrishnapuram for assignment of the right, title and interest of the landlord and a certificate of purchase Ext. 351 was issued to her. On the strength of these documents the 2nd defendant claims absolute title to item 3. Item 4 is also claimed to be an acquisition of Hydrose and after his death his brother Moideenkutty and the 1st defendant had, as per the sale deed Ext. B1 dated 10 -1 -1955 assigned this item to the 3rd defendant. The 3rd defendant claim title under Ext. B1. The defendants also plead that the plaintiffs' title, if any, is lost by adverse possession. Item 5, according to the defendants, belonged to Thiruvalayanattu Bhagavathi Devaswom under whom one Janardanan Thampan had kanom rights In partition among his children after this death, this item was allotted to his son Gopinatha Menon. He had granted a lease of this item to the 1st defendant and later assigned the same to the 2nd defendant as per Ext.B2 sale deed dated 5 -3 -1960. The 1st defendant surrendered the leasehold right to the 2nd defendant and she is in possession of the same in her own right.

(3.) THE decree in regard to item 3 is on the basis of the Defendants admission that it was an a acquisition by Hydrose. Hydrose and Moideenkutty died issueless. Therefore the 1st defendant was entitled to 2/3rd shares and Ummeri Umma to l/3rd share. The plaintiffs as legal heirs of Ummeri Urn ma 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.