SABURA AMMAL Vs. ALI MOHAMED NACHIAR

JUDGEMENT

(1.) THIS appeal is filed by the Plaintiffs 1 and 3 to 5 in O. S. No. 17 of 1956 on the file of the District Court of East Thanjavur at Nagapattinam. There is a long anterior history of litigation between the principal contestants. Since the scope of the appeal is limited to a few points in controversy, we will refer to the prior history of the litigation, only to the extent it is necessary for the disposal of the appeal.

(2.) THE suit properties belonged to one Jainambu Nachial whose only daughter was sabia Ammal. Both these ladies died of a sudden attack of Cholera on 3-6-1926. It is now beyond dispute that the mother died first and the daughter died afterwards. Jainambu Nachial, before her death, on 19-2-1926, executed a settlement deed in favour of her daughter Sabia giving her the properties mentioned in Schedules A to A-3 and B to B-2 of the Plaint. On Sabia's death, the properties settled on her devolved upon her husband Mohamed Ismail Rowther, the first defendant in the suit, as well as her paternal uncle Mohamed Ali, each taking a half share. On the death of Jainambu a half share in the plaint C and D schedules was taken by her brother Sheik Mohamed Rowther, who is the husband of the first plaintiff in the suit Sabura Ammal. The other half share of Jainambu, on her death, devolved on her daughter Sabia and, on the latter's death, that share devolved in moieties on the first defendant and Mohamed Ali. Mohammed Ali conveyed his half share in all the properties thus acquired by him by succession, to Noor Mohammed, son of the first plaintiff. This Noor Mohamed died subsequently and his heirs are his mother, who is the first plaintiff and his brothers and sisters plaintiffs 2 to 4. The second plaintiff died pending the suit, and his widow was impleaded as the fifth plaintiff. On the basis of the above allegations, the Plaintiffs claimed one half share in Sabia's properties (A to A-3 and b to B-2 of the plaint schedule) and a three-fourth share in Jainambu's properties (those mentioned in C and D Schedules), whereas the remaining share belonged to the first defendant. On various dates within 12 years prior to suit, the first defendant sold some of the properties to several alienees, who are defendants 2 to 25 in the suit. The first defendant died pendente lite, and defendants 26 to 31 were brought on record as his legal representatives. The plaintiffs claimed that they and the contesting first defendant owned the properties as co-owners, and the suit was brought for partition and separate possession of the plaintiffs' share mentioned above. In equity, the properties alienated by the first defendant to the alienees might be allotted to the first defendant on alienating co-sharer. There was also a prayer for directing accounts to be taken of the income from the properties from the date of the plaint.

(3.) IN the lower Court, except defendants 1 and 16, the other defendants remained ex parte. The first defendant, the main contesting defendant, pleaded that Sabia's father Mohammed Nooruddin spent a great deal of time in the Isles, which term appears to refer to Borneo, Sarawak and other islands in Indonesia. There he married under Muhammadan Law; a local lady, Masma and had a son Yousuff by her. This Yousuff is alive. The first defendant contended that under the muhammadan Law, it was Yousuff who would succeed Sabia on her death and not her paternal uncle Mohamed Ali. This Yousuff is her consanguine brother and therefore, should succeed to the properties and not Mohamed Ali. The first defendant also pleaded that, in any event, his possession was adverse for over the statutory period to the plaintiff, and he has acquired prescriptive title. On the above pleadings he contended that the suit was to be dismissed. The sixteenth defendant claimed that he was an unnecessary party to the suit.