CHAVITTUMPARAKKAL THAMASIKKUM DAPPAYIL AKKUTTYS DAUGHTER PATHUMMA Vs. POKKU

JUDGEMENT

(1.) Appellant is the plaintiff in a suit for partition.

(2.) Plaint A and B schedule properties originally belonged to one Kaderkutty Haji. He died intestate and had no issues. First defendant is the widow of Kaderkutty Haji. Defendants 2 to 5 are the children of the deceased brother of Kaderkutty Haji and plaintiff is his sister. Since Kaderkutty Haji died intestate, according to the plaintiff, she got half share of the properties of Haji and first defendant has got half of the remaining half and that defendants 2 to 5 had got the remaining half share. Kaderkutty Haji had other items of properties and those items were partitioned as partition deed dated 11-11-82. However, the plaint schedule items were not included in the said partition. Later mediators intervened and tried to settle the matter relating to the plaint schedule properties, but the same was not materialised. Defendants 2 to 5 later filed O.S. 474/83 which was dismissed for default. However, a contention was raised in the said suit by first defendant that the plaint schedule properties were gifted to her. According to the plaintiff even if the gift deed was executed the same is invalid. She, therefore, sought for partition and separation of half share of plaint A and B schedule properties.

(3.) In the suit defendants 4 and 5 remained ex parte. Defendants 2 and 3 admitted the plaint claim. First defendant contended that the plaint schedule properties are not available for partition. It is her case item Nos. 2 to 5 and half right over item No.1 were gifted by Kaderkutty Haji vide Ext. B3 document. The remaining half right over item No. 1 along with item Nos. 6 and 7 were gifted in her favour vide Ext. B4 document dated 21-2-1977. She was also put in possession and she is in absolute enjoyment of the properties by virtue of the abovementioned documents. Later items 1 and 4 to 7 were assigned by her to 6th defendant, brother of the first defendant, vide Ext. B9 document dated 11-7-84. Item No. 2 was given in wakf vide Ext. B2 document dated 8-8-84 in favour of Jumayath Committee. Item No. 3 was also given in wakf to Jumayath Committee vide document dated 8-8-84. It is her case all the remaining properties left by deceased Kaderkutty Haji were partitioned in between the plaintiff and defendants 1 to 5. Defendants 6 and 7 also filed a written statement supporting first defendant. Eighth defendant also reiterated the same contention.