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2017 Supreme(Ker) 494
IN THE HIGH COURT OF KERALA AT ERNAKULAM
B. KEMAL PASHA, J.
MUHAMMED HAMSATH AND ORS. – APPELLANTS
Versus
MAHAMMED BASHEER – RESPONDENT
R.S.A.No.1394 of 2013
Decided On : 03-04-2017
FOR THE PETITIONER: V.L. SHENOY, L. JAYAWANTH
FOR THE RESPONDENTS: VINOD J. DEV(CAVEATOR), M. RAMASWAMY PILLAI
The main legal point established is the application of Hanafi Law of Succession in determining the shares of legal heirs in a property dispute.
Headnote:
Partition - Property Dispute - Agrarian Relations Act IV of 1961 - 1972 Kerala High Court Notes Page 263 - 2011 (4) KHC 847
Fact of the Case:
The case involves a dispute over the partition of a property among the legal heirs of the deceased Moideen Muhammad. The plaintiff claims 64/72 shares over the property, while the 1st defendant claims 8/72 shares based on adverse possession and ouster.
Finding of the Court:
The court found that the plaintiff and other legal heirs were entitled to shares in the property as per Hanafi Law of Succession. The court dismissed the second appeal, upholding the lower courts' decisions and allowing either party to apply for the passing of the final decree before the trial court.
Issues: The issues included the identification of the property, validity of the suit documents, construction of certain deeds, and the relevance of Agrarian Relations Act IV of 1961.
Ratio Decidendi: The court relied on the principles of Hanafi Law of Succession to determine the shares of the legal heirs. It also emphasized that the issues raised by the appellant did not affect the entitlement of the parties to the property.
Final Decision: The second appeal was dismissed, and the parties were allowed to apply for the passing of the final decree before the trial court.
Challenging the concurrent findings entered by the Munsiff's Court, Chengannur in O.S.No.250 of 1997, followed by those of the Subordinate Judge's Court, Chengannur in A.S.No.198 of 2008, the defendants have come up with this second appeal.
2. The suit is one for partition. The trial court decreed the suit in terms of the plaint and passed a preliminary decree and judgment, thereby declaring 64/72 shares to the plaintiff and 8/72 shares to the 1st defendant, from the plaint schedule property. Aggrieved by the said judgment and decree, the defendants preferred A.S.No.198 of 2008 before the lower appellate court. The lower appellate court concurred with the findings entered by the trial court and dismissed the appeal.
3. The plaintiff is none other than the younger brother of the 1st defendant. The plaintiff, the 1st defendant, Abdul Majeed, Isha Beevi, Pathumma Kunju and Sainaba Beevi are the children of late Moideen Muhammad and Kunjumma. Moideen Muhammad died in the year 1123 M.E. and Kunjumma died on 25.03.1980. Late Moideen Muhammad had a brother named Moideen Marackar. Moideen Marackar has a son named Kathirukunju. Both Moideen Muhammad and Moideen Marackar are the children of late Moideen. The 2nd defendant is the son of 1st defendant.
4. The case of the plaintiff in short is that the plaint schedule property having an extent of half cent and viruvu (excess land) belonged to late Moideen Muhammad, who died intestate, whereby his wife Kunjumma and his aforesaid children were his legal heirs, who were entitled to the said property. Subsequently, the 1st defendant along with Pathumma Kunju and Sainaba Beevi had executed Exhibit-A2 sale deed in favour of their mother Kunjumma on 22.03.1956, thereby selling their shares over the plaint schedule property to Kunjumma. Kunjumma died intestate with regard to the said property, whereby the property devolved on the 1st defendant, the plaintiff, Abdul Majeed, Isha Beevi, Pathumma Kunju and Sainaba Beevi.
5. It is the case of the plaintiff that through Exhibit-A3 sale deed dated 19.05.1997, Abdul Majeed, Isha Beevi, Pathumma Kunju and Sainaba Beevi sold their shares over the plaint schedule property to the plaintiff. The remaining co-sharer is the 1st defendant alone. According to the plaintiff, on account of the execution of Exhibit-A3, he became entitled to 64/72 shares over the plaint schedule property. The 1st defendant is entitled to the remaining 8/72 shares. The request of the plaintiff for a partition and separate possession fell in deaf ears, and hence the suit.
6. The defendant contended that the plaint schedule property was the subject matter of Exhibit-B1 and subsequently, Exhibit-B5, whereby it came into the possession of Kathirukunju, who is the son of Moideen Marackar. According to the 1st defendant, he trespassed into the plaint schedule property and reduced the plaint schedule property along with some other properties into his possession and enjoyment to the exclusion of others. It is further contended that on account of the ouster, he became entitled to the plaint schedule property exclusively.
7. The 1st defendant claims adverse possession also. In short, the claim of the 1st defendant is that he is a rank trespasser into the property and he perfected his possession through adverse possession and limitation and also ouster. This Court has admitted this second appeal on the following questions of law:
"(i) Were not the courts below wrong in granting a decree without getting the property identified with reference to the extent of the properties involved in the suit on the basis of a comprehensive survey plan when the contesting parties seriously dispute the identity and extent of the properties in view of the ratio laid down by this Court in 1972 Kerala High Court Notes Page 263 and 2011 (4) KHC 847?
(ii) Whether the courts below are justified in granting a decree on the basis of the suit documents relied on by the plaintiff (Exts.A1 to A3) wherein an "otty" transac
