SYED AMANULLAH HUSSAIN DIED Vs. RAJAMMA

JUDGEMENT

(1.) One, Habeebulla Hussaini died on the 7th February, 1967. At the time of his death he was the 'owner of a house and some moveable property. The appellant herein file the suit O.S. 461/69 on the file of the V Addl. Judge, City Civil Court, Hyderabad for recovery of possession of the house and moveable property claiming that he was the brother of the deceased Habeebulla Hussaini and is his sole heir. In the plaint it was stated that defendants 1 and 2 were claiming the properties on the ground that defendant 1 was the wife and defendant 2 is the son of the deceased. The plaintiff contended that the first defendant was only a maid servant of Habeebulla Hussaini and was living in the same house. She was not legally wedded wife of Habeebulla Hussaini, nor is the second defendant his son

(2.) The second defendant filed a written statement contending that though the first defendant was a Hindu Harijan she was converted into islam and took the name Hussain Bee and married Habeebulla Hussaini. The second defendant was the son bornout of lawful wedlock of the first defendant with the deceased. Hence they were the heirs entitled to the property and in their presence the plaintiff who was the brother had no right or claim to the property Defendants 3 and 4 to the suit are the children of the first defendant by her first husband Venkatasami who died long ago. D-3 filed a written statement supporting the contention of the second defendant. D-1 and D- 4 remained exparte. The court below after framing the necessary issues and considering the oral and documentary evidence produced in the case held that D 1 was the legally wedded wife of Habeebulla Hussaini and D-2 was their son and in their presence the plaintiff was not an heir according to the personal law. It further held that there was no evidence that Habeebulla Hussaini left the plaint B schedule property and moveable properties, fn the result, it dismissed the plaintiff's suit with costs of the second defendant and as the suit was filed in- forma pauperis it directed the plaintiff to pay the court-fee on the plaint. The plaintiff has preferred this appeal against the said judgment and decree.

(3.) In this appeal it is contended, as was done in the court below, that D-1 is not the legally wedded wife Habeebulla Hussaini and the second defendant is not his son and therefore they are not his heirs and the plaintiff is the sole-heir entitled to his property, ft is not disputed that the plaintiff is the brother of the deceased Habeebulla Hussaini. The burden is upon defendants 1 and 2 to satisfy the court that the first defendant was the lawfully wedded wife and the second defendant is the son of Habeebulla Hussaini, fn this connection it may be mentioned that the first defendant died during the pendency of the suit.