N VENKATARAMA IYER Vs. ABDUL KARIM

JUDGEMENT

(1.) THE second appeal is instituted by one N. Venkatarama Iyer, the plaintiff in the courts below, in a suit for partition and separate possession of his alleged fourth share in the suit properties. Admittedly, the properties, belonged to the co-sharers of a Muslim family, and the plaintiff (appellant) sued as a transferee or assignee for value of the rights of two of those sharers, under circumstances, that are not without some degree of interest. The facts are as follows. The properties originally belonged to one Kamal Sahib who died in 1933. He left surviving him his widow mariam Bi, two daughters Hajra Bi and Murad Bi and a son Abdul Kariam alias Nur pasha who is the contesting respondent. Mariam Bi died on 11-1-1944. Prior to her death, she instituted a suit O. S. No. 453 of 1943 for partition along with her two daughters against her son Abdul Karim, (the first respondent ).

(2.) AFTER the death of Mariam Bi, her two daughters were recorded as her legal representatives, the son already being on record, and the suit continued. On 2441944, there was a preliminary decree in this partition suit. There was a final decree on 21-10-1944, but prior to this final decree, on 11-7-1944, Hajra Bi died. Admittedly, her legal representatives were her husband Latifuddin (first defendant herein) and her son Sheik Abdul Jaleel (sacond defendant herein ). They attempted to be brought on record in O. S. No. 453 of 1943 as the legal representatives of majram Bi, but they failed in this attempt. It is unnecessary for our present purpose to deal with the merits of the refusal of the Court to bring those persons on record as the legal representatives of the deceased Majram Bi. It is sufficient to note that a civil miscellaneous appeal filed by them was also dismissed, and that the present defendants 1 and 2 were never brought on record as parties in O. S. No. 453 of 1943.

(3.) AFTER the final decree in O. S. 453 of 1943, Abdul Karim (first respondent), who had been ex parte in that suit, filed applications for setting aside the preliminary and final decrees, and permitting him to contest the reopened suit; those applications were successful. But on the same date (3-9-1945), the suit itself was dismissed as settled out of court between the parties on record. It has to be carefully noted that Latifuddin and Sheik Abdul Jaleel (present defendants 1 and 2), the admitted legal representatives of Majram Bi, were not parties to this settlement out of Court and the consequent dismissal of the suit.