ABDUL KADER MARICAR Vs. SARAUMMAL

JUDGEMENT

(1.) Aggrieved over the dismissal of the suit for partition, the first plaintiff has filed the present appeal. The parties are arrayed as per their own ranking before the trial Court for the sake of convenience.

(2.) The Brief facts of the plaintiffs' case is as follows:- Abdul Razack Maricar had three wives and through his first wife he had three daughters and two sons and the sons are the first and second plaintiffs and the daughters are the defendants 5 and 6. The plaintiffs 4 to 9 were born through the second wife viz., Ummasi ammal. He had a daughter viz., Sabiya Ummal, the third plaintiff. The third wife is the first defendant and through her, he had four children viz., defendants 2, 3, 4 and 7. All the properties are the properties of Abdul Razack Maricar. He died in December 1980. Under the Muslim Law, widow viz., Saraummal/first defendant is entitled to ? share and the remaining estate shall be taken by the residuary heirs namely sons and daughters in the ratio of 2:1. The deceased Abdul Razack Maricar left a registered Will dated 28.5.1973 bequeathing his entire properties in favour of the first defendant and the Will is not valid as the sons and other co-sharers were not given any share. Therefore, the suit was filed for partition.

(3.) The first defendant filed the written statement and the same was adopted by the defendants 3 and 7. It is stated that the Will dated 28.5.1973 is a perfect valid document and under the Will Abdul Razack Maricar bequeathed all his properties in favour of the first defendant and since then the first defendant was in enjoyment of the same and the Will was executed with the knowledge and consent of the legal representatives and even after the death of Abdul Razack Maricar, the plaintiffs have given consent for the Will. It is also stated that at the time of marriage of the first defendant with Abdul Razack Maricar, he was 48 years old and the first defendant was 16 years old and at that time Abdul Razack Maricar had six sons through his first and second wives and therefore, at the time of marriage Abdul Razack Maricar assured that he would execute a Will in favour of the first defendant in respect of his properties and pursuant to the assurance given, the Will was executed and for the past more than ten years, no objection was raised by the plaintiffs regarding the Will and the properties are enjoyed by the first defendant and the plaintiffs also had given consent after the death of the testator and the suit is also barred by limitation.