KARIMBHAI ALIAS ABDUL KARIM Vs. BAI MARIAMBIBI

JUDGEMENT

(1.) This appeal is filed by the appellants (original defendants Nos 1 and 2) against the judgment and preliminary decree passed in Special Suit No 47 of 1962. That suit was filed by the plaintiffs (respondents No 1 to 3 ) against the appellants (original defendants Nos 1 and 2), respondent No 4 ( original defendant No 3). And respondents Nos 5,6 and 7 (original defendants Nos 4 , 5 and 6 ). Appellant No 1 having died during the pendency of appeal his heirs and legal representatives have been brought on the record. Respondents Nos 5 and 6 died during the pendency of appeal. Their heirs and legal representatives were not brought on the record within the period of limitation Civil Application No 367 of 1972 filed for bringing on record the legal representatives of defendant No 6 beyond the period of limitation has been rejected by this Court on 23-10-1972 . It is therefore evident that so far as respondents Nos 6 and 7 (original defendants Nos 5 and 6 ) are concerned, the appeal has abated . On behalf of the respondents , contention is raised that the appeal in its entirely abates and this appeal cannot be heard . It is significant to note that the suit filed by the plaintiff's (Respondent Nos 1 and 3 ) who was a suit for the partition of the suit property . It belong to one Malangbhai Hasanbhai in the appeal we are concerned with the suit house bearing survey No 41 , situate in Baroda , as the decree for partition has been passed in respect of that property only .

(2.) The appellants are the son's of that Malangbhai Hasanbhai plaintiff's (Respondents Nos 1 to 3 are the heirs of deceased Hasanbhai Malangbhai another son of Malangbhai . Respondents Nos 5 to 7 are sisters of the appellants i.e daughters of Malangbhai .

(3.) It was the case of the plaintiffs ( Respondents Nos 1 to 3 ) that the property in question belonged to Malangbhai and they being the heirs and legal representatives of deceased Hasanbhai , they were also entitled to share according to Mohomedan Law . The appellants contended that Bai Mariam plaintiff No 1 was not the legally wedded wife of Hasanbhai Malangbhai and consequently plaintiff's Nos 2 and 3 were not the legitimate children of the deceased . It was their contention on that basis that they were not entitled to any share in the property in dispute . It was their further contention that their sisters viz . respondents No.s 6 and 7 were also the heirs of Malangbhai and consequently they were necessary parties to the suit . In view of the contention of theirs those sisters of the appellants were added as parties to the suit and they supported the plaintiff contention . It was the further case of the appellant that they had become the exclusive owners of the property in dispute by adverse possession for a period over twelve years . Issues were accordingly framed on the basis of the pleading at Exhibit 13 .