THAMBIYAPPA ALIAS SYED IBRAHIM Vs. ROSHAN BIVI

JUDGEMENT

(1.) THIS appeal is directed against the judgement-dated 01.09.1994 and the even dated preliminary decree passed in O.S.No.184/1991 on the file of Sub Court, Dharaapuram. The defendants in the suit are the appellants before this Court. The plaintiff in the original suit is the respondent in this appeal. The first appellant / first defendant is the brother of appellants 2 and 3/defendants 2 and 3 and respondent/plaintiff. The respondent herein had filed the above said original suit on the file of learned Subordinate Judge, Dharapuram for the relief of partition and separate possession claiming 1/5th share in the suit properties. According to the Plaint averments, all the three items of suit properties were that of her mother Joharammal, who died on 25.12.1981 without making any arrangement for the succession to her estate. As such the parties to the suit being the son and daughters of the deceased Joharammal had succeeded to her estate. As per Mohamedan Law each one of the daughters were entitled to 1/5th share and the first appellant being the son was entitled twice the share of a daughter and as such he was entitled to 2/5th share.

(2.) THE suit was resisted by the appellants/ respondents on the following grounds:-

(3.) AT the conclusion of trial, the learned subordinate Judge heard the arguments advanced on either side, considered the evidence, both oral and documentary, in the light of the said arguments and came to the conclusion that the respondent herein/plaintiff was entitled to the relief of partition as prayed for. The learned Subordinate Judge also held that the defence plea put-forward by the appellants/defendants to the effect that the suit was bad for non-joinder of necessary parties could not be sustained. The other plea that item 2 of the suit properties was not available for partition, as the same happened to be the property of Md. Yousuf Rowther (father of the parties to the suit), as the same had been purchased under Ex.B1 Sale Deed dated 25.05.1927 was also turned down, holding that the said document did not relate to any one of the suit properties, but pertained to some other property. So far as the plea of the defendants for sharing of the debts incurred by the first appellant/first defendant is concerned, the lower court accepted the said contention, fixed the share of the respondent/plaintiff in the liability towards the discharge of the said debts at Rs.10,000/-. Accordingly, the learned Subordinate Judge passed a preliminary decree declaring that the respondent/plaintiff was entitled to 1/5th share in all the three items of the suit properties and directing division of the suit properties into five equal shares and allotment of one such share to the respondent/plaintiff. The preliminary decree also incorporates a clause directing the respondent/plaintiff to pay a sum of Rs.10,000/- to the first appellant/defendant towards her share in the liability for discharging the debts incurred by him for the marriage of his sisters and daughters of the deceased sister.