MAIMUN BI ALIAS MAIMUNNISSA Vs. AMMAJI

JUDGEMENT

(1.) THE unsuccessful plaintiffs are the appellants herein. THE appellants/plaintiffs filed the suit for partition and to set aside the final decree dated 24.12.1986, passed in I.A.No.262 of 1982 in O.S.No.732 of 1976, on the file of the District Munsif, Coimbatore.

(2.) THE case of the appellants/plaintiffs was that the suit property originally belonged to one Moideen Sheriff and he died intestate in the year 1972, leaving behind his second wife Gudu Bi, and children through her and also the children through the first wife Rukia Bi, who predeceased her. THE case of the appellants/plaintiffs was that they are the son and daughter of Moideen Sheriff, through his second wife, viz., the third defendant, and defendants 1 and 2, are the children of Rukia Bi, the first wife and defendants 4 to 6, are the children of Gudu Bi, the second wife i.e., the third defendant. THErefore, the appellants/plaintiffs are entitled to 21/72 shares in the property, as per the Muslim Law. It was further stated that the suit in O.S.No.732 of 1976, was filed by their mother in collusion with other legal heirs and in that suit, the appellants/plaintiffs were represented by her and the interests of the appellants/plaintiffs were not properly represented and the mother has no right to represent the appellants/plaintiffs and therefore, the compromise entered into between the parties, by which, the final decree was passed in I.A.No.262 of 1982 in O.S.No.732 of 1976, is not binding on the appellants/plaintiffs. Hence, the final decree passed in I.A.No.262 of 1982 in O.S.No.732 of 1976, is liable to be set aside and the appellants/plaintiffs may be allotted 21/72 share in the suit property.

(3.) THE learned counsel appearing for the appellants submitted that admittedly, when the final decree proceedings were pending, the appellants/plaintiffs become majors and no steps were taken by them to remove the guardian and the final decree proceedings continued and the appellants/plaintiffs were not properly represented and the compromise entered into between the parties in the final decree proceedings was not with the leave of the Court and therefore, the plaintiffs are not bound by the final decree proceedings.