PARAYIL HUSSAIN Vs. PARAYIL MUTHIRICAL SOOPPI

JUDGEMENT

(1.) THESE two Second Appeals arise from the final decree passed in O.S.742 of 1968 on the file of the Munsiff 's Court of Tellicherry.Defendants 25 to 40 are the appellants in S.A.216 of 1990 and respondent No.49 in the application for the passing of the final decree claiming under or through defendant No.27 in the suit is the appellant in S.A.748 of 1992.By the preliminary decree passed two items of properties that were scheduled to the plaint were directed to be divided into 50 shares.The plaintiff was allotted 8 shares.One share to defendant No.1,24 shares to defendants 2 to 23 and 41 and 42 in a group.14 shares to defendants 27 to 40 in a group were allotted.One share each was allotted to defendants 25 and 26.The one share due to defendant No.24 was allotted to the legal heirs of defendant No.24.During the course of the proceedings for the passing of the final decree there was a dispute about the allotment of the house in which the family was residing.Defendants 27 to 40 claimed allotment on the ground that defendant No.27 was residing in that building.Of course it is pointed out on behalf of the contesting respondents that in the objection to the application for the final decree there was no such claim for allotment of the house by defendants 27 to 40.The Commissioner proposed an allotment of the house shown as plot B in his plan to the share of defendants 2 to 23 and 41 and 42 on the basis that they were the major sharers.Defendants 2 to 23,41 and 42 appeared to have been unwilling to have the building allotted to their share and they wanted the building be sold.An application I.A.1296 of 1976 was filed by defendants 2 to 23 and 41 and 42 seeking a review of that order.Ultimately what we find is that during the course of the final decree the building was allotted to the share of defendants 2 to 23 and 41 and 42.The appeal filed by defendants 27 to 40 challenging the said allotment of the house to defendants 2 to 23 and 41 and 42 was dismissed by the lower appellate court.It is feeling aggrieved by that dismissal that defendants 27 to 40 have filed this Second Appeal.It is contended on their behalf that the building ought to have been allotted to their share especially in the light of the view adopted by defendants 2 to 23 and 41 and 42 that they did not want an allotment of the building to them.It appears that at a later stage defendants 25 and 26 also supported the claim of defendants 27 to 40 and sought a joint allotment of the house to them as well along with defendants 27 to 40.

(2.) LEARNED counsel for the appellants in S.A 216 of 1990 pointed out that in support of her clam,for allotment Defendant No.27 had got herself examined as R.W.1 and it was admitted on all hands that she was residing in the building along with her children.The courts below did not accept that part of the case of defendant No.27 since in her cross examination she stated that her sons were residing in the houses of her respective daughters inlaw and her daughters were also residing with their husbands.The courts below inferred from those answers that defendant No.27 alone was residing in the building belonging to the family and not all her children as claimed by her.Taking note of her status as a senior female member of the family,the courts below even while allotting the building to the major shares,defendants 2 to 23 and 41 and 42 conferred a right on defendant No.27 to reside in the building for her life.Defendants 2 to 23 and 41 and 42 did not object to the right given to defendant No.27 and even before me,either counsel submitted that they had no objections to defendant No.27 residing in the house during her lifetime.

(3.) BEFORE answering the aspects projected in this Second Appeal finally,I think that it would be appropriate to first consider S.A.748 of 1992 filed by respondent No.49 in the application for the final decree,the transferee from defendant No.27.