This intra court appeal is preferred against the judgment and decree passed by the learned Single Judge of this Court in A.S.No.175/1995, reversing the judgment and decree passed in O.S.No.34/1982 of the Sub Court, Tirur and dismissing the cross appeal filed by the respondent therein. O.S.No.34/1982 was a suit for partition and also for setting aside a gift deed in favour of the first respondent herein who was the sole contesting 6lh defendant in the original suit. The plaintiff and all defendants in the original suit except the sole contesting 6th defendant are no more. The appellants and all respondents except the 1st respondent are successors in interest of the plaintiff and original defendants 1 to 5.

2. Genealogy, Properties and claims:

Mundekattil Abdutty was an illiterate and issue less landlord, who committed suicide at the age of 57 leaving behind his wife Rukkia Umma, two brothers - Kunhimarakkar and Mohammed Musliar and also four sisters by names Ayisumma, Pathunni Umma, Veerayumma and Thithumma. He had large extent of landed property, in excess of ceiling limit under the Kerala Land Act. Abdutty married thrice and divorced twice, but died issue less. This sad plight and tragic end of Abdutty culminated in a long legal battle for three decades between his wife on the one side and siblings and thereafter their successors in interest of second and third generations on the other side for his prime immovable property. The first round of the legal battle started when Abdutty's elder brother-Kunhimarakkar Haji filed O.S.No.34/1982, close on the heels of Abdutty's tragic end, against his siblings and Abdutty's wife Rukkiya Umma who are the legal heirs of Abdutty, for partition and for setting aside the gift deed No.341/1981 dated 11.7.1981 executed by Abdutty in favour of his wife Rukkiya Umma, before his death if it stands in the way of partition. First defendant is the eldest brother and defendants 2 to 5 are sisters. All defendants except Rukkiya Umma fully supported the plaint claim and they also prayed for their shares also. The plaintiff and 1st defendant claimed 6/32 share each and sisters defendant 2 to 5 claimed 12/32 share each in the plaint A, B and C schedule properties. But, the 6th defendant Rukkiya Umma also agreed for sharing all the items in plaint A schedule except 7th and 13th items. Rukkiya Umma claimed absolute right and possession over items 7th and 13th of A schedule immovable property by virtue of the gift deed executed by her husband Abdutty in her favour and claimed her respective share in accordance with Mohammedan law in all other properties. A schedule is large extent of immovable properties comprised in items 1 to 15, B schedule is movables in the house and C schedule is Rs.50,000/- allegedly kept in the house at the time when Abdutty died. The suit was decreed partly. Entire items 1 to 15 of A schedule were found partiable, rejecting the claim for absolute right and possession raised by Rukkiya Umma over items 7 and 13. In B schedule, items 1,3,5 6 and 8 were found partiable. The prayer for partition of C schedule amount was rejected.

3. Aggrieved by the judgment and decree passed by the trial court, Rukkiya Umma filed A.S.No. 175/1985 before this Court and the plaintiff and other defendants filed cross objection therein. The learned Single Judge of this Court reversed the judgment of the trial court in respect of item Nos.7 and 13 of A schedule property, found that those properties are not partible, allowed the appeal and dismissed the cross appeal.

4. Pleadings:

Plaint averments are as follows:

(Parties are referred to as in the original suit). Plaint A, B and C schedule properties were belonged to and possessed by Abdutty, who died intestate. Plaint A schedule properties were owned and possessed by Abdutty by virtue of gift deeds of 1956 and 1960. On 17.1.1982 Abdutty died leaving behind his legal heirs who are the plaintiff and defendants 1 to 6. The properties would devolve upon his