S M SHAMSUDEEN Vs. S M FAROOK

JUDGEMENT

(1.) The defendants 1 and 2 in O.S.No.69 of 2004 on the file of the District Court Nagapattinam are the appellants. The suit was filed by the 1st respondent seeking partition and separate possession of his 2/7 share in the suit property.

(2.) According to the plaintiff the suit property belonged to the father of the parties namely, Mr.Mohamed Hussain. He died on 7.04.1995 leaving his three sons namely, the plaintiff and defendants 1 and 2 and one daughter, the 3rd respondent. The mother of the plaintiff died on 22.03.1998. Therefore, according to the plaintiff, each son would be entitled to 2/7 share and the 3rd defendant would be entitled to 1/7 share.

(3.) The 3rd defendant remains exparte. The 1st defendant filed written statement and the same was adopted by the 2nd defendant. The 1st defendant would contend that the father of the parties namely, Mohamed Hussain had gifted the suit properties to the 1st defendant by way of oral gift "Hiba". He would further contend that the said "Hiba" was confirmed by an affidavit of declaration dated 28.03.1994. The 1st defendant also stated that the plaintiff had filed a suit in C.S.No.621 of 2000 on the file of this Court seeking partition of the properties of their mother and the said suit came to be dismissed accepting the plea of oral gift made by the 1st defendant. The 1st defendant would also rely upon the fact that the lease in respect of the land over which the suit building (lodge) has been transferred in his name, pursuant to the oral "Hiba" by the land owners, namely Myuranatha Swamy Temple under the control of Thiruvaduthurai Adheenam. Therefore, he would contend that the lease of the land stands in his favour. The 1st defendant also denied the quantum of income claimed by the plaintiff. On the above pleadings, the 1st defendant has sought for dismissal of the suit.