MOHAMED ISMAIL Vs. KHADIRSA ROWTHER

JUDGEMENT

(1.) THE following geneologicaf tree sets out the relationship of the parties:- dirsa Rowther, the first plaintiff, and his son filed O. S. No. 74 of 1970 on the file of the Court of the Subordinate Judge of Dindigul for partition and separate possession of the suit properties. THE allegations were that the plaintiffs and the defendants 1 to 5 axe the co-owners of the suit properties. THE first plaintiff and the defendants 1 and 2 have been managing the suit properties with the help of the 6th defendant who is the junior paternal uncle of defendants 1 and 2. THE 6th defendant has no right, title or interest in the suit properties. THE income from the properties has been shared by the co-sharers. While so, defendants 1 and 2 on the one hand and the 6th defendant on the other purported to have effected a partition of the suit properties by means of a registered partition deed Exhibit B-1. THE plaintiffs came to know of it when they were denied their share of income by the defendants 1 and 2 a month before the filing of the, suit. A panchayat was convened for the purpose of effecting the partition which proved to be futile. THE alienations made by the defendants 1 and 2 are, not true, valid and binding on the plaintiffs. THE first plaintiff is entitled to 35/800 shares; the 2nd plaintiff is entitled to 42/800 shares; defendants 1 and 2 are entitled to 14/800 shares each and defendants 3 to 5 are entitled to 21/800 shares each. Hence the suit.

(2.) THE first defendant filed a written statement admitting the relationship between the parties. Inter alia his pleas were: (1)that Kathija Bibi had orally relinquished her right in view of the fact that costly presents were given to her during her marriage; (2) the inaction having regard to the non-participating of Kathija Bibi or even the plaintiffs after her death for a long period would spell out ouster; (3) some of the items of the properties not belonging to the family have been included in the decree for partition; and (4) in any event it has to be proved by the plaintiffs that the suit properties were purchased from out of the income belonging to the joint family. THE 6th defendant filed a written statement contending that the acquisitions made, by him are totally independent and had nothing to do with family income. THE suit was also barred by time. THE other defendants viz. , 7th, 8th, 9th, 10th, 12th, 13th, 19th and 22nd filed separate written statements asserting their independent title to these properties. On these pleadings, the following issues came to be framed:- 1. Whether the plaintiffs are entitled to partition and separate possession of their share in the suit properties" 2. Whether the suit properties are the separate properties of Kadersha Rowther or the joint properties of Kadersha Rowther and his brother Meeranan Rowther (6th defendant) 3. Whether the oral partition alleged to have been effected between Kadersha Rowther and the 6th defendant in 1942 and the subsequent oral partition alleged to have been effected between defendants 1, 2 and 6 in 1947 are true" 4. Whether the partition effected between defendants 1, 2 and 6 by means of a registered partition deed on 3rd September, 1955, is true and valid" 5. Whether defendants 1, 2 and 6 have in any event prescribed title to the suit properties by the doctrine of ouster" 6. Whether the suit is barred by the law of limitation" 7. Whether the plaintiffs are entitled to mesne profits" 8. Whether the alienation effected by defendants 1 and 2 in favour of defendants 7 to 10 and 19 in respect of some of the items of suit properties are true, valid and binding on the plaintiff" 9. Whether the alienees have made improvements to the items of properties purchased respectively by them" 10 Whether the alienees are entitled to any equity" 11. Whether the alienees and their pre-decessors-in-title have in any event prescribed title lo the properties purchased by them by adverse possession" 12. To what relief, if any, are the plaintiffs entitled"

(3.) MR. Gopal Raj, learned counsel for the plaintiffs, seeking to support the preliminary decree passed by the Court below states that the theory of oral relinquishment as stated will have to be rejected. There is no evidence to establish that Kathija Bibi had orally relinquished her right in the suit properties. Excepting interested testimony there is no independent evidence whatsoever in this direction. Therefore, that plea will have to necessarily fail.