S K MASTHAN Vs. S BIBIJAN

JUDGEMENT

(1.) THE unsuccessful plaintiffs in both the Courts below are the appellants.

(2.) THE case in brief is as follows: THE plaintiffs filed a suit for petition and separate possession of the suit properties into 8 shares and to allot 7 shares to them. THE schedule mentioned properties are the properties of the father of the plaintiffs, who died 18 years ago leaving behind the plaintiffs and the second defendant as the legal heirs. According to the Mohammedan Law, the plaintiffs are entitled to 7/8th share and the second defendant is entitle dot 1/8th share. One Bibijan filed O.S.No.175 of 1962 on the file of District Munsif Court, Tiruttani against Sheik Abdul Saheb, junior paternal uncle of the plaintiffs and their mother the second plaintiff and others for declaration of her right to the properties and for permanent injunction on the basis that she had purchased the property from the second defendant under a registered sale deed dated 31.9.1960. THE plaintiffs were then minors and they were not parties in that suit. However, it was decreed on 26.3.1965 and the first defendant filed an appeal in A.S.No.348 of 1965 before District Court, Chengalpattu and the appeal was partly allowed declaring the plaintiff's title only to 1/8th share of her vendor and the decree for injunction was set aside and directed the plaintiffs to seek remedies for working out her 1/8th share separately by petition. THE plaintiffs filed Second Appeal No.1354 of 1966 before this Court and the appeal was allowed on 16.10.1972 confirming the judgment and decree of the lower appellate Court. It was also held by this Court that the sale deed executed by the second defendant in favour of Bibijan is not binding on the plaintiffs in that suit, who were then minors and the Plaintiffs are at liberty to file a suit for partition in respect of their 1/8th share in the properties. Thus, the first defendant has got only 1/8th share in the properties by virtue of the sale deed executed by the Plaintiff's mother the second defendant. THE plaintiffs and the second defendant are therefore co-owners of the suit properties. THE first defendant refused to divide the suit properties into 8 shares and give the plaintiffs separate possession of 7 shares and hence the suit.

(3.) IT is not in dispute that the suit property originally belonged to one Khalesha Saheb and plaintiffs 1 to 3 were the children and the second defendant was the wife. The second defendant conveyed the suit property under Ex.B-1 dated 31.12.1960 in favour of the first defendant for discharging the mortgage debt for herself and on behalf of the minor children. IT is also admitted that the first defendant filed a suit against the second defendant and brother of Khalesha Saheb in O.S.No.175 of 1962 on the file of District Munsif Court, Thiruthani for permanent injunction and obtained a decree. But, however, in the appeal, it was held that the second defendant, according to Muslim Law, cannot act as a guardian for the minors and, as such, the sale in entirety will not be valid and it would be binding only the 1/8th share. Ex.A-1 is the copy of the judgment. The matter was taken in Second Appeal as S.A.No.1354 of 1966 and the same was also dismissed. Ex.A-2 is the copy of the judgment. There is also a direction that the minors, who are the plaintiffs herein, can work out their rights for partition in separate proceedings relating to their shares. Based upon this direction only, the plaintiffs filed the present suit for partition claiming 7/8th share in the suit properties.