MOHAMMED IBRAHIM Vs. SYED MUHAMMAD ABBUBAKKER

JUDGEMENT

(1.) THE third defendant in O.S. No. 243 of 1962 on the file of the court of the Subordinate Judge, Coimbatore, is the appellant in App. No. 533 of 1969. Defendants 18 to 20 who are the legal representatives of the 12th defendant in the said suit are the appellants in App. No. 203 of 1970. The suit was filed by the plaintiff for partition and separate possession of his 14/144th share in schedules B to F properties. Sheik Hussain Din I and Sheik Magdoom were brothers. They had considerable properties in which each had a half share therein. In 1888 Sheik Hussain Din I died leaving behind him his widow Sheikammal two daughters Varu Ismail Bibi and Khader Hussain Bibi and two sons Khader Hussain Din and Sheikh Hussain Din II. Varu Ismail Bibi had a daughter Meeran Bibi who died leaving behind defendants 21 to 24 as her legal representatives. She had another son Syed Mohajmed Abbubakker, who is the plaintiff in the action. Khader Hussain Bibi, the other daughter of Sheik ammal died in 1944 and her heirs are defendants 8 to 11. Khader Hussain Din (the first son of Sheikammal) married Rahima Bibi, the 7th defendant in the suit and left behind him his heirs defendants 2 to 6. Sheik Hussain Din II died unmarried on 27 -7 -1961. The 12th defendant is the alienee of some of the suit properties from the heirs of Khader Hussain Din. Defendants 13 to 18 are either the lessees of the suit properties or having an interest therein as encumbrances. As already stated, the plaintiff claims a share in all the plaint schedule properties and would attack inter alia the deed of gift executed by Sheik Hussain Din II in relation to certain items of the suit properties and would say that the said hiba would not bind him and the said properties also should be deemed and considered to be family properties in which he has a share. Originally the plaint was filed in the court of the District Munsif, Udumalpet. As the defendants raised a plea of exclusion of the plaintiff as a co -owner from joint possession of the suit properties and as the jurisdictional value was beyond the jurisdiction of the Munsif's court, the plaint was returned and thereafter presented in the Sub -Court, Coimbatore, and renumbered, as O.S. No. 243 of 1962.

(2.) THE first defendant supports the plaintiff's case. The second defendant's case is that the properties described in schedules B to F did not belong to Sheikammal and her children and in particular would say that the properties described in the E schedule excepting S. F. No. 163/A -2 was purchased by Khader Hussain Din and Sheik Hussain Din II on 21 -6 -1912 from one Khadarsa Rowther of Ayakudi, that the E schedule properties belonged only to the father of the first defendant and his uncle and that the plaintiff, his mother or grandmother did not have any right, title or interest therein. It is the case of the defendant that the plaintiff has no right over the B schedule properties, that the half share of Sheik Magdoom therein was sold in 1902 itself, that defendants 2 to 6 and their uncle Sheik Hussain Din II were adversely in possession of the B schedule properties, that the plaintiff's mother in an earlier suit filed by her in 1913 did not even claim any share in the said properties and that therefore, the plaintiff has no right to them. According to this defendant, the plaintiff has lost his right to claim a share in the C schedule properties by limitation and the plaintiff's mother having filed an earlier suit for partition as early as 1913 and she not having furthered the decree therein, the properties described in schedules D and F are adversely held by this defendant, and the third defendant, adverse to the other heirs and, therefore, the plaintiff's claim to have the properties described in schedules D and F partitioned and he be allowed his share is unsustainable. According to this defendant and the third defendant the suit properties were in their exclusive possession and were held by them adversely to others and, therefore, the plaintiff's suit for partition as prayed for is not maintainable. As between him and the third defendant, the second defendant would say that the gift deed dated 16 -4 -1961 is invalid and does not bind him and that he would be entitled to a half share in the properties of Sheik Hussain Din II. The third defendant sustains the hiba and pleads that the E schedule properties are not family properties in which the plaintiff could claim a share. In particular he would allege that Sheikh Hussain Din II obtained S. F. No 163/A -2 on dharkast from the Government and that, therefore, the plaintiff cannot project any interest therein. He would plead like the second defendant that the B schedule properties have ceased to be the family properties, and that, defendants 2 to 6 and Sheik Hussain Din II were in exclusive possession of the same to the prejudice of the other heirs. A similar contention is raised as regards the properties described in schedules C and D. He sustains the alienation made by him and the second defendant and Sheik Hussain Din II to the 12th defendant. On the question of hiba or the gift deed executed on 16 -4 -1961 third defendant's case is that the same is valid gift and the second defendant having attested the same and acquiesced in it cannot question it. Even so, his case is that the properties gifted to him by Sheik Hussain Din II are not family properties. On the whole it is pleaded that the right of the plaintiff and the other heirs of Sheikammal to obtain their respective shares in the properties mentioned in schedules B, C, D and F are barred, as the third defendant and the second defendant were in possession of the same adversely to the other co -heirs. The third defendant also denies the right of the plaintiff to any mesne profits in any one or more of the items of the suit properties. In the additional written statement, the third defendant raised the plea that the present suit is barred by Order 2, Rule 2, C.P.C. The 4th defendant and the 5th defendant sail with the third defendant. The 6th defendant, however, would say that the gift deed dated 16 -4 -1961, executed by Sheik Hussain Din II in favour of the 3rd defendant is not valid. She would, however, sail with the third defendant that the plaintiff has no right over the E schedule properties including S. F. 163/A -2. She would join with defendants 2 and 3 in asserting that the plaintiff's right over B, C, D and F schedule properties are barred, since those grope properties were adversely held by others to the prejudice of the plaintiff. She claims her share in the B to F schedule properties and seeks for a decree for partition in that behalf. The 7th defendant sails along with the 3rd defendant. Defendants 8 to 11 would allege that Khader Hussain Din was managing the entire family properties mentioned in the suit schedules and that after his death Sheikh Hussain Din II was similarly managing the properties and that the income from the properties was being divided amongst various sharers including these defendants and that the possession of the suit properties by Khader Hussain Din and Sheik Hussain Din II was only for the benefit of the family and, therefore, no question of adverse possession would ever arise. They would also allege that certain properties mentioned in the suit schedules are in their possession and that they are entitled to a 7/48th share in the suit properties and other family properties. They would attack the gift deed dated 16 -4 -1961.

(3.) THE other defendants filed formal written statements. On the above pleadings the following issues and additional issues were framed -