KANEEZ FATIMA Vs. ANGEAL CAMERON ALIAS SIRAJ SULTHANA

JUDGEMENT

(1.) (Judgment of the Bench delivered by Madhava Reddy. J.) 1. This appeal is directed against the judgment and decree in O.S.No. 115/69 on the file of the Fourth Additional Judge, City Civil Court, Hyderabad. The suit is by the 1st respondent herein for partition and separate possession of her share of the Matruka left by her father Merit. Col. Mirza Yousuf Ali Baig, hereinafter referred to as 'the deceased', who died on 2-9-1968. The plaintiff is the eldest daughter of the deceased by the 3rd defendant in the suit. Defendants 4 and 5 are her sisters and defendants 6 and 7 are her brothers. It is stated by the plaintiff that the 1st defendant was living with the deceased and she was treated by him as his wife and the 2nd defendant is the son of the deceased by the 1st defendant and is under the care and custody of defendant No. 1. The appellants in this appeal are defendants 1 and 2.

(2.) According to the plaintiff the deceased died intestate leaving considerable moveable and immoveable properties described to the best of her knowledge in plaint 'A' and 'B' schedules. Defendants 1 and 2 were residing with the deceased in the house described as item No. 1 in plaint 'A' schedule. It is alleged that defendants 1 and 2 are secreting the properties and inspite of several efforts they did not agree for partition and distribution of the Matruka properties. It is alleged that the 1st defendant while postponing the partition, surrepticiously wrote to the Commissioner of Police and got exparte orders for the release of the Fire Arms and Ammunitions belonging to the deceased. The plaintiff claims to be entitled to a 14/144 share in the plaint schedule properties.

(3.) Defendants 1 and 2 assert that the deceased had duly married the 1st defendant and that she was the legally wedded wife of the deceased and was living with him till his death and that the 2nd defendant was their son. About the 3rd defendant their case is that she was a Christian by birth and the deceased had developed intimacy with her before the deceased actually married her. Defendants 4 to 7 were born to them. After she embraced Islam they were married. However, in the year 1952, the 3rd defendant left the deceased along with her belongings taking heryoungest daughter defendant No. 5 with her and deserted the deceased. She later re-embraced Christianity and began attending church. The deceased therefore divorced her in August, 1952. lt is also averred that the plaintiff and defendants 4 to 7 later converted to Christianity. Regarding the three houses mentioned in plaint 'A' schedule it was averred that house bearing Municipal No. 10-4-25/2 situate at Masab Tank was gifted by the deceased and possession was also delivered to the 2nd defendant under a registered gift deed dated 28-5-66, which gift was accepted and therefore that did not constitute Matruka property. Another house bearing Municipal No. 10-4-125/1 situate at Masab Tank was also oral y gifted to the 1st defendant out of love and affection on 15th August 1968 by the deceased and a memorandum affirming the same was also written on 25-8-1968. Of the three houses mentioned therein, only item No. 3 was therefore Matruka property and liable for partition. Except of some furniture, three guns and a telescope, the existence of the other items of moveable properties mentioned in plaint 'B' schedule was denied. It was pleaded that in view of the apostasy of the 3rd defendant she was not entitled to the Meher amount and that the 3rd defendant and her children were not entitled to inherit any of the properties.