KHADIR BI Vs. MAMMOODUNNISSA BEGUM

JUDGEMENT

(1.) THIS Letters Patent appeal has been filed by defendants 30 to 33 with the leave of Srinivasan, J. , in S. A. 231 of 1963. The suit is for partition, possession and future mesne profits. The suit properties belonged to three brothers, Chandamiyan sahib (died in 1940), Amir Sahib (died in 1927) and Shamshuddin Sahib (died in 1943 ). It is not in dispute that these brothers or their legal representatives were entitled each to one-third share in the suit properties as on the date of the death of Shamsuddin in 1943. The properties had originally been sold in Court auction under a mortgage decree, but they had already been purchased in 1925 in the name of Rahima Bi, wife of one of the brothers, Chandamiyan Sahib. In 1929 shamshuddin (one of the brothers) executed a mortgage over the properties thereby showing that the purchase in 1925 was on behalf of the family. In respect of the arrears due to the Municipality the properties were brought to sale, and were purchased by the present first defendant in 1944, but possession was not taken thereunder. Till the death of Shamsuddin in 1943 the members of the family of the three brothers admittedly resided in the suit properties. After his death, his widow and children left for Madras leaving the heirs of Amir Sahib, who are defendants 30 to 33, in occupation of the properties. Defendants 1 to 29, who represent Chandmiyan Sahib, also appeared to have left for Salem. The result is that the descendants of Amir Sahib viz, defendants 30 to 33, who are the present appellants, continued to be in possession of the properties. The plaintiffs in the suit, who are the legal representatives of Shamsuddin, filed the present suit claiming partition of their one-third share in the properties. Their case is that the properties always belonged to the family and enjoyed in common. Their claim was supported by defendants 1 to 29, who, as already stated, are the representatives of Chandmiyan Sahib. The only contesting persons to the plaintiffs' claim are the legal representatives of Amir Sahib, viz, defendants 30 to 33.

(2.) THE plaintiffs' claim was resisted by defendants 30 to 33 on the ground that they have been continuous and uninterrupted possession and enjoyment of the properties from 1938 onwards, that Shamsuddin had been adjudicated an insolvent in 1935, that his interests in the properties vested in the Official receiver, Salem, and that notwithstanding the discharge, the properties never reverted or revested in him (Shamsuddin), that the co-tenancy or co-ownership between the brothers had been extinguished by the insolvency of Shamsuddin in 1935, that the title of defendants 30 to 33 had become perfected by their adverse possession, that, the heirs of Chandamian Sahib sold the properties to govindaswami Pillai and the purchaser failed to obtain possession, that there has been no co-tenancy between the parties, that the present suit has been filed at the instigation of the first defendant and that the plaintiffs are not entitled to their share claimed.

(3.) THE trial Court dismissed the suit holding that the suit properties did not revest in Shamsuddin notwithstanding the grant of absolute discharge, that Shamsuddin lost his title to the suit properties by reason of I. P. 56 of 1935 on the file of the sub Court, Salem, and that defendants 30 to 33 have perfected their title to the entire suit properties by adverse possession.