NILOPHER Vs. SEYEEDHA

JUDGEMENT

(1.) This Appeal arises out of the judgment in O.S. No. 5 of 2006 dismissing the Appellants/Plaintiffs suit for partition claiming 91/112 share in the suit properties. Unsuccessful Plaintiffs are the Appellants.

(2.) Brief facts are that the suit properties belonged to one Khader Ghouse Sahib. One Akther was his first wife. After the death of Akther, the said Khader Ghouse Sahib married the 1st Plaintiff on 09.12.1971 in accordance with Muslim law and custom at Mumbai, Bendi Bazaar. Out of the lawful wedlock, Plaintiffs 2 to 5 were born to them. Khader Ghouse Sahib, native of Vridhachalam was working at Kuwait and his mother was residing at Vridhachalam. Khader Ghouse Sahib used to come and live with the Plaintiffs at Bombay during his visit to India on leave and when he was visiting his mother at Vridhachalam. The mother of Akther and the mother of 1st Defendant are sisters. According to Plaintiffs, during his visit to India, Khader Ghouse Sahib married 1st Defendant-Seyeedha and 2nd Defendant-Asha was born to Khader Ghouse Sahib and the 1st Defendant. Further case of Plaintiffs is that Khader Ghouse Sahib used to live with 1st Plaintiff as well as 1st Defendant during his visit to India. Defendants 1 and 2 are living at Vridhachalam. Khader Ghouse Sahib died on 18.4.2001 at Kuwait. Prior to his death, his mother also expired. As such, Plaintiffs as well as Defendants 1 and 2 are the legal heirs of Khader Ghouse Sahib. In the capacity of wife, 1st Plaintiff and 1st Defendant are entitled to l/8th share each. Plaintiffs 4 and 5 are entitled to 14/56 share each and in the capacity of daughters of Khader Ghouse Sahib, each Plaintiffs 2 and 3 and 2nd Defendant are entitled to 7/56 share. Claiming 91/112 share, Plaintiffs issued Ex. A.7 notice (23.10.2003) and the same was returned as "insufficient address". Defendants 6 to 9 are tenants who are paying the rent to Defendants 1 and 2. During the pendency of the suit, a portion of 5th item of 'A' schedule property was purchased by the 10th Defendant-Sulaiman and the possession of the said property has to be recovered from him. The 1st Defendant was working as a teacher in the school of 11th Defendant-Ye-sudhas Raja and to defeat the lawful share of the Plaintiffs, 1st Defendant has executed a sham and nominal document in favour of 11th Defendant with respect to item No. 4. For proper and complete adjudication, Plaintiffs impleading all the tenants and also the 11th Defendant and filed the suit claiming partition of 91/112 share in the suit properties.

(3.) Denying the marriage of 1st Plaintiff with the Khader Ghouse Sahib, Defendants 1 and 2 have filed written statement contending that 1st Defendant alone is the legally wedded wife of Khader Ghouse Sahib and 2nd Defendant is their legitimate daughter. The 1st Defendant and deceased Khader Ghouse Sahib lived as wife and husband for nearly 20 years and after return from Kuwait, the 1st Defendant was living at Vridhachalam and she is living in suit item 1 and 2 and enjoying items 3 and 5. According to 1st Defendant, out of her separate funds she is constructing a kalyana mandapam with two shops in suit item No. 5. According to the Defendants 1 and 2, the marriage certificate of 1st Plaintiff is a concocted, fabricated and a forged one and Plaintiffs 2 to 4 are not the legal heirs of Khader Ghouse Sahib. According to Defendants, the deceased Khader Ghouse Sahib had a friend at Bombay and 1st Plaintiff is his kept mistress and the Plaintiffs want to grab the properties of Khader Ghouse Sahib. An agent in Vridhachalam is acting on behalf of the Plaintiffs and the Plaintiffs are not the sharers and they are not entitled to any share in the suit properties.