NOORUNISSAALIASPICHAMMA Vs. RAHAMAN BI

JUDGEMENT

(1.) THE appeals in A.S.No.228 of 1990 and Cross-objection No.116 of 1995 in A.S.No.228 of 1990, A.S.No.619 of 1990 and A.S.No.759 of 1990 are filed against the judgment and decree dated 1.11.1989 and made in O.S.No.56 of 1986 on the file of the learned Subordinate Judge, Tindivanam, by plaintiff, third defendant, 6th defendant and 9th defendant respectively.

(2.) THE facts that are necessary for disposal of these appeals and cross objection are as follows: Mohammed Ali Maraicair has married the first defendant and has given birth to defendants 2 to 6, his sons and plaintiff and defendants 7 to 9 his daughters. Mohammed Ali Maraicair was carrying on business in steel under the name and style of "Pondy Steel Agencies" at Anna Salai, Pondicherry and in brass vessels under the name and style of "Moula Sahib Stores" in Big Market, Pondicherry by investing about Rs.2,00,000 in the abovesaid shops. THE properties described in plaint "A", "B", "C", "D" and "E" Schedules belonged to Mohammed Ali Maraicair. Mohammed Ali Maraicair died on 30.5.1984 leaving the abovesaid properties and the plaintiff and defendants as his heirs. THE plaintiff and defendants are entitled to the abovesaid properties as heirs. THE plaintiff and defendants are enjoying the "A" Schedule properties inclusive of items 12 and 13 jointly after the death of Mohammed Ali Maraicair. THE plaint "C" Schedule properties are deposits in bank and also decrees obtained by Mohammed Ali Maraicair against the persons who borrowed money from him. THE properties described in "D" Schedule were purchased from the income derived from the other properties described in the plaint Schedules. THE properties described in "E" Schedule were purchased by Mohammed Ali Maraicair in favour of his wife, the first defendant, but enjoyed by him during his life time till his death. THE first defendant is attempting to sell the property in Kottakuppam in favour of one Iluvutheen Sahib, son of Jain Ullutheen Sahib. THE first defendant has no right to sell. THE defendants are claiming that Mohammed Ali Maraicair had executed a Will with regard to some of the items of these properties. THE said Will is not genuine and it should have been forged by the defendants only to defeat the right of the plaintiff in the suit properties. In any event, Mohammed Ali Maraicair has no right to execute a Will with regard to the portions of the suit properties in favour of some of his heirs and it is not valid in law. THE defendants are attempting to remove the stock in trade from the premises wherein Mohammed Ali Maraicair was carrying on business, and also the properties described in "B" Schedule with a view to prevent to plaintiff from getting her due share. An advocate-Commissioner has to be appointed to take inventory of the stock in trade in Pondy Steel Traders and Moulana Sahib Metal Stores in Pondicherry. THE plaintiff has issued notices to the defendants on 1.4.1986 and 11.6.1986 to divide the properties left by Mohammed Ali Maraicair and allot her share. THE defendants 1 and 3 to 7 had given a reply notice on 23.4.1986 containing untenable allegations. It is under the said circumstances, the plaintiff who is the appellant in A.S.No.228 of 1990 on the file of this Court has filed the suit for partition and separate possession of her 7/112 share, to decide the mesne profits underO.20, Rule 12, C.P.C. for accounting of the income from items 12 and 13 in plaint "A" Schedule properties and also for costs.

(3.) ACCORDING to the plaintiff and as per the evidence of P.W.1, the plaint "A", "B", "C", "D" and "E" Schedule properties are properties of one Mohammed Ali Maraicair and he died intestate on 30.5.1984 leaving the plaint Schedule properties for being succeeded by his wife, the 1st defendant, his sons the defendants 2 to 6 and daughters, the plaintiff and defendants 7 to 9. The second defendant Yusuf died during the pendency of this proceedings and therefore, the respondents 10 to 13 were impleaded as heirs of the deceased second respondent who is the second defendant before the trial Court. The contention of the 9th defendant and the evidence of her husband D.W.5 are in supporting line of the case of the case of the plaintiff and the evidence of P.W.1 the husband of the plaintiff. Therefore, the plaintiff and the 9th defendant claim partition of 7/112 share each in the properties described in the plaint Schedule. But the other contesting defendants contend that late Mohammed Ali Maraicair and his wife, the 1st defendant herein have executed the Will Ex.B-2, dated 15.9.1980 bequeathing certain properties owned by them in favour of defendants 3 to 6 that the properties covered under the Will is not liable for partition, that Mohammed Ali Maraicair had also said to have executed a second Will Ex.B-1, dated 29.8.1981 with regard to certain other properties owned by him and if the abovesaid Will is true and valid, the properties described in the said document cannot also liable for partition. The properties described in "B" Schedule are not available for partition as movables owned by late Mohammed Ali Maraicair, that some jewels available in the family are the jewels of the 1st defendant, which is not liable for partition, that the plaint "E" Schedule property is the separate properties of 1st defendant purchased with the help of her father Naina Mohammed who is a very rich man, that "E" Schedule properties were sold by the 1st defendant and purchased second item of "D" Schedule property and the abovesaid property was settled in favour of the 6th defendant by the 1st defendant and that therefore the abovesaid properties are also not liable for partition. ACCORDING to the contesting defendants, item 12 in plaint Schedule "A", Pondy Steel Agency at 184, Anna Salai,Pondicherry is a business started by 3rd defendant in 1984 and late Mohammed Ali Maraicair has no interest in the said business so as to lay a claim by the plaintiff or 9th defendant for partition. It is also the case of the contesting defendants that the business under the name and style of Moula Sahib Metal Stores at door Nos.321 and 322, Big Market,Pondicherry, was started in 1983 as a partnership concern by late Mohammed Ali Maraicair and gifted to defendants 4 and 6 even during his lifetime, that defendants 4 and 6 were continuing the abovesaid partnership business thereafter in their own right. It is also the case of the 6th defendant that the 1st item of "D" Schedule property, viz.,Bharat Metal Store at 139, Thiagu Mudali Street,Pondicherry was started as partnership business by him along with one Siddique for sale of brass and eversilver vessels and the said business was started even during the lifetime of late Mohammed Ali Maraicair with the earnings from Moula Sahib Metal Store. It is on those grounds the contesting defendants contend that the business described in items 12 and 13 in plaint "A" Schedule properties and 1st item in plaint "D" Schedule property are not liable for partition.