K MOHAMED MUTHU Vs. HABEEBA BEEBI

JUDGEMENT

(1.) Defendants 1 to 8 who succeeded before the trial court and suffered decree in A.S.No.277/1987, filed the above Appeal.

(2.) The plaintiff filed a suit in O.S.No.527/1982 on the file of the Sub-Court, Coimbatore for partition of the suit properties into 4 equal shares and allotment of three shares to the plaintiff and for a direction to the appellants herein to render true and proper accounts regarding the rents realised from the suit 'A' schedule property for 3 years prior to the filing of the suit and directing them to pay 3/4th share due to the plaintiff and also for mesne profit.

(3.) It is not in dispute that that the suit property originally belonged to the mother of the plaintiff, Sara Bibi, who executed a settlement deed on 5.11.1952 in favour of her daughter who is the elder sister of the plaintiff, Fathima Bibi. Under the said document, she was given life estate and the vested remainder was given to her husband and unspecified heirs. Stating that the restrictions imposed in the document from getting absolute right by Fathima Bibi is contrary to Mohammedan law and also it is invalid and unenforceable, the plaintiff has come forward with the plea that Fathima Bibi is his sister, got the property absolutely and so after his death on 4.12.1974, as his brother, she is entitled 14/24 shares in the suit property. Sara Bibi also got 1/6th share and husband of Fathma Beevi, Kamaludin got 1/4th share. The balance that was available was 14/24th share and the plaintiffs succeed to the said share as residuary. It is also stated that when Sara Bibi, the mother died, her share was also taken by the plaintiff with the result the plaintiff became entitled to 3/4th share and Kamaludin, the husband of Fathima Bibi owned only1/4th share. Defendants 1 to 8 could are the children of Kamaludin through his 2nd wife. On that basis, the plaintiff has come forward with the plea that defendants 1 to 8 could claim only to the said share, namely, 1/4th share. Defendants 9 to15 are the tenants under the suit property. It is also stated that Kamaludin, the husband of Fathima Bibi executed a settlement deed on 13.7.1981 in favour of defendants 1 to 8. The plaintiff has come forward with the above suit on the basis of the said pleadings.