Appellant entitled only to a 1/4th share in the property purchased from the deceased's widow, clarifying rights of legal heirs in partition proceedings.

JUDGMENT :

D K SINGH, J.

The present First Appeal has been filed under Section 96 R/w Order 41 Rule 1 of CPC against the judgment of decree dated 13.04.2016 passed by the learned Additional Senior Civil Judge and CJM, Tumakuru, in O.S.No.90/2008.

2. The plaintiffs' had filed suit for partition of the properties left behind by late Mahaboob Shariff. The description of the properties are given in the plaint. The plaintiff's are the brothers and sisters of late Mahaboob Shariff.

3. The defendant No.4, who is the appellant herein had purchased the suit schedule property in Item No.5, from the widow of late Mahaboob Shariff. The suit came to be filed by the plaintiffs. The defendant No.4 was proceeded ex-parte, since he did not answer the summons. Defendant No.1 i.e., Rafeeqa Banu, wife of Late Mahaboob Shariff and defendant No. 5 also died during the pendency of the suit and their legal heirs were brought on record, before the impugned judgment and decree could be passed. On the basis of the pleadings, the learned trial Court framed the following issues:

"1. Whether defendant No.2 proves that late Mahaboob Shariff executed gift deeds dated 18.08.1991 and 31.03.2003, making gift of suit schedule item No.1 and 4 properties respectively in his favour ?

2. Whether plaintiffs are entitled for the relieves as prayed ?

3. What order or decree ?"

4. The learned Trial Court decreed the suit vide the impugned judgment and decree. However, in respect ofthe right of defendant No. 4, the learned trial Court observed that though defendant No.4 did not choose to appear and contest the suit in spite of service of summons, defendant No.4 would be at liberty to agitate his right upon suit schedule Item No. 5 property against the legal heirs of defendant No.4.

5. The suit schedule properties in Item Nos.1, 3, 5 and 6 are partitioned vide judgment and decree passed by the learned Trial Court. However, the suit was dismissed in respect of Item No.4 of the suit schedule property.

6. Smt. S. Susheela, learned Senior Counsel for the appellant/ Defendant No. 4 submits that defendant No. 4 would be entitled to undivided 1/4^th share, which would have been the share of defendant No.1-Rafeeqa Banu. She further submits that the observation of the learned Trial Court in paragraph 30 that defendant No.4, who is appellant herein would be entitled to agitate his right upon suit schedule Item No. 5 property against the legal heirs of the defendant No.4, appears to be a typographical error, inasmuch as defendant No.4 cannot agitate his right against his own legal heirs.

7. It is further submitted that the petitioner's application to participate in the FDP proceedings is not being entertained by the Executing Court on the basis of this observation.

8. On the other hand, learned counsel for the plaintiffs/respondents has submitted that the defendant No.4 would be entitled only to the extent of share of the deceased defendant No.1 in the suit schedule property in Item No. 5. He cannot claim 1/4^th share in respect of all the properties left behind by deceased Mahaboob Shariff.

9. The learned counsel for the plaintiffs/respondents has placed reliance on the judgment in Syed Shah Ghulam Ghouse Mohiuddin and Others versus Syed Shah Ahmed Mohiuddin Kamisul Quadri (1971) 1 SCC 597 , in support of his submission. It is submitted that there is no question of equitable partition of all the properties left behind by Mr. Mahaboob Shariff, and his legal heirs would be entitled for the proportionate share in all the properties left behind him.

10. We have considered the aforesaid submissions and perused the records.

11. The point for consideration, which arise in this appeal i