FATHIMUTHU Vs. GHOUSE AHMED MARACAYAR

JUDGEMENT

(1.) This is a second appeal filed by the plaintiff Fathimuthu in O.S.No.116 of 1976, on the file of the learned District Munsif, Chidambaram against the judgment and decree dated 20.8.1979 in A.S.No.100 of 1978, on the file of the Court of the learned Subordinate Judge, Chidambaram, dismissing the appeal with costs of the contesting respondents and confirming the judgment and decree of the trial court.

(2.) The suit was filed for partition and separate possession of plaintiff s half share in the suit properties, for future mesne profits and for costs.

(3.) The case of the plaintiff in brief is as follows: One G.M.Ghouse and his wife originally owned the suit properties and other properties and they had executed a Hiba on 19.3.1931 in favour of their grand children by name Aliaudeen, Fathima Bivi, K.Shafia Bivi, Kathija Bivi and K.Ameena Bivi who were minors then. The guardian of the donees took possession of the properties and the gift deed was acted upon. Under the said gift deed, the donees were given only the right to enjoy the income from the properties and they were not given any power of alienation. As per the terms contained in the hiba, the grand children of G.M.Ghouse have to enjoy the properties absolutely. The donees mentioned in the hiba effected a partition among themselves regarding the gift properties and in the said partition Shafia Bivi, who is the 6th defendant in the suit, was allotted the properties described in the Schedule -C. The said Shafia Bivi has got a son who is the 1st defendant in the suit, and a daughter who is the plaintiff in the suit. The plaintiff and her brother are entitled to half share in the properties which are given to the 6th defendant under the gift deed. Contrary to the terms of the hiba, and the subsequent arrangements between the donees, the 6th defendant had sold almost all the properties in favour of the defendants 2 to 5. The 6th defendant has got no right to alienate the properties and therefore the alienation by the 6th defendant would not bind the plaintiff and the 1st defendant. The 1st defendant has parted with his interest. Under these circumstances, the plaintiff has come forward with the suit for partition, separate possession and mesne profits, regarding her share in the properties.