HAMEED Vs. JAMEELA

JUDGEMENT

(1.) The first defendant in a suit for partition is the appellant. The plaintiff is the daughter of one Aboobacker and the first defendent is the son. Defendants 2 to 9 are also the children of Aboobacker. Defendant No. 10 is the widow of Aboobacker. Aboobacker died on 25.2.1974. Plaint E Schedule property having an extent of 17 cents was sold by Aboobacker during his life time. Overruling the contentions of the first defendant the plaintiff was given a preliminary decree for partition awarding the plaintiff seven out of 104 shares in plaint A to D and F Schedule properties. This preliminary decree for partition was confirmed by the appellate court repelling the challenge by the first defendant. Feeling aggrieved the first defendant has filed this Second Appeal.

(2.) Defendants 1, 4 and 9 sons of Aboobacker had purchased the shares of their sisters other than the plaintiff. The defendants denied the entitlement of the plaintiff to a share. Though the defendants set up an oral gift of the properties by the father to themselves to the exclusion of the plaintiff, the said case was found against and on the materials no reason is found to interfere with that finding by the courts below. The defendants raised an alternate contention that the plaintiff was estopped from claiming any share in view of the fact that her claim to a share in the properties of the father had been settled by an arrangement come to even during the life time of the father, and having accepted that arrangement and acted upon it the plaintiff could not claim a share on partition as she has sought to do. This plea was not accepted by the courts below while decreeing the suit and the Second Appeal is filed raising the substantial questions of law on this aspect as formulated in the Memorandum of Second Appeal. This court admitted the Second Appeal on the substantial questions of law formulated and as I noted, the purport of the substantial questions of law framed on the basis of different approaches is essentially the question whether the plaintiff is estopped from claiming a share on partition.

(3.) According to the defendants the father Aboobacker gave a sum of Rs. 1000 to the plaintiff towards the settlement of her claim or her share in his properties. With that amount the plaintiff purchased 25 cents of property under Ext. B1 sale deed dt. 6.3.1972. The seller thereunder was the husband of the plaintiff. It is recited in that deed of sale that the consideration proceeded from the father Aboobacker and the contention of the defendants is that this amount was paid in satisfaction of the share of the plaintiff. The plaintiff having accepted that transaction and the amount paid by the father in view of purchase price therefore, she cannot now claim partition of the properties of Aboobacker. Alternatively it is pointed out that in any event she had to elect either to retain the benefit under Ext. B1 purchase dt. 6.3.1972 or to claim a share on the death of the father and she is not entitled to retain the property purchased under Ext. B1 and also claim partition of the rest of the properties.