Point of Law: Preliminary decree for partition – Modified – A gift (Hiba) is the conferring of a right of property in something specific without an exchange (ewaz).

JUDGMENT :

O.S. No.85 of 1993 was a suit filed before the Sub Court, Tirur for partition and separate possession of the properties scheduled in the plaint. A preliminary decree for partition was passed by the learned Subordinate Judge on 30th January, 1997. Assailing the said judgment and decree, the plaintiff had preferred A.S No.507/1997. The 1st defendant had filed A.S. No. 219 of 1997 and the 5th defendant had filed A.S. No. 584 of 1997.

2. For the sake of convenience, the parties are referred to as per their status before the trial court.

3. It is the case of the plaintiff that the plaint schedule item Nos. 1 to 7 originally belonged to Achambat Kunhalikutty Haji, the father of the plaintiff and the defendants 1 to 5. Kunhalikutty Haji had married thrice. His first wife was Kunhipathi Umma. The 1st defendant was born to them in the said wedlock. Later he divorced her and married another lady viz Thithi Umma (defendant No.8) and one son was born to them by name Muhammed Ali. Kunhalikutty Haji then divorced her and married one Pathukutty Umma. The plaintiff and the defendants 2 to 5 are the children born to them in the said wed lock. Kunhalikutty Haji expired on 25.01.1985. His wife Pathukutty Umma expired on 07.01.1993. Before her death, i.e., on 20.04.1986 Muhammed Ali, the son of Kunhalikutty Haji and Thithi Umma expired. Defendant No.6 is the daughter of Muhammed Ali and the 7th defendant. The 7th defendant, his wife, remarried after five years of his death. The plaintiff had claimed partition of the plaint schedule item Nos. 1 to 7 among the legal heirs of Kunhalikutty Haji. It is contended by the plaintiff that the claim raised by the 5th defendant over item No. 1 property placing reliance on a will deed is not correct as the will deed is against Islamic law and therefore invalid. So item No.1 is also liable to be divided among the legal heirs. The buildings in Item Nos. 2 and 3 constructed by the father and rented out to the tenants including the State Bank of India, Parappanangadi Branch are also partible among the parties along with the other properties.

4. The 1st defendant averred that item No.2 property was gifted to him by his father in the year 1959 by executing a registered gift deed and hence the said property is not partible. Item No. 1 property is in the possession of the 5th defendant and he is residing in the house situated therein. Another property with shop room Nos. 12/435 to 438 and 339 to 346 (upstair portion) are also liable to be partitioned but, those rooms and the property are not scheduled in the plaint.

5. The 5th defendant had claimed exclusive right over item No. 1 property (2 acre 10 cents in which tharavad house is situated) as per the will deed executed by Kunhalikutty Haji in his favour. That property is less than 1/3 of his entire property. Item No.2 was gifted to the 1st defendant and hence not partiable. Item No. 3 property is also claimed by the 5th defendant as per a gift deed No. 663/1959.

6. The 3rd defendant admitted the claim raised by the 5th defendant over item No.1 property on the basis of the will deed.

7. The 2nd and 4th defendants had averred that they were not aware of the will deed alleged to have been executed by their father in favour of the 5th defendant.

8. Defendants 6, 7 and 8 the legal heirs of Muhammed Ali, the deceased son of Kunhalikutty Haji, have contended that the properties were managed by the 1st and 5th defendants and along with them they are also entitled to get their shares.

9. Before the court below PW1 was examined and Ext.A1 to 18 were marked on the side of the plaintiff. For the defendants DWs. 1 to 7 were examined and B1 to B48 were marked. Later as per the order dated 20.10.2020 in I.A No. 1 of 2019 DW8 was examined and Ext B 49 was also marked.

10. The learned trial Judge as per the judgment under challenge passed a preliminary decree for partition directing to divide all the properties scheduled as well the property mentioned in the written statement of t