Ouster cannot be imposed due to non-participation in income.

MOHAN, J. :- The following genealogical tree sets out the relationship of the parties:-

(See genealogical table below)

Defendants 7 to 22 third party purchasers or their legal representatives from defendants 1 and 2. Khadirsa Rowther, the first plaintiff, and his son filed O. S. No. 74 of 1970 on the file of the court of the Subordinate Judge of Dindigul, for partition and separate possession of the suit properties. The allegations were that the plaintiffs and the defendants 1 to 5 are the co-owners of the suit properties. The first plaintiff and the defendants 1 and 2 have been managing the suit properties with the help of the 6th defendant, who is the junior paternal uncle of defendants 1 and 2. The 6th defendant has no right, title or interest in the suit properties. The income from the properties has been shared by the co-sharers. While so, defendants 1 and 2 on the one hand and the 6th defendant on the other purported to have effected a partition of the suit properties by means of a registered partition deed Ex. B. 1. The plaintiffs came to know of it when they were denied their share of income by the defendants

Kattuva Rowther (died)

Kadhersha Rowther Meeranan Rowther

(died in 1946-47) (6th deft)

Fathima (first wife; predeceased Fathima (second wife

her senior husband) junior died in 1953)

Daughter Kathija Bibf

(died on 20-8-1953) Mohammed Meera Mohammed Kaja

married Kadirsa (died in 1953) Ismail Mohideen

Rowther (Plff. No. 1) unmarried (1st deft) (2nd deft)

Mohammed Jaithoon Bi Jaina Bi Mumtaz Bi

Shereef (3rd deft) (4th deft) (5th deft)

(Plff. No. 2)

1 and 2 a month before the filing of the suit. A Panchayat was convened for the purpose of effecting the partition which proved to be futile. The alienations made by the defendants 1 and 2 are not true, valid and binding on the plaintiffs. The first plaintiff is entitled to 35/800 shares; the second plaintiff is entitled to 42/800 shares; defendants 1 and 2 are entitled to 14/800 shares each and defendants 3 to 5 are entitled to 21/800 shares each. Hence the suit.

2. The first defendant filed a written statement admitting the relationship between the parties. Inter alia his pleas were (1) that Khathija Bibi had

orally relinquished her right in view of the fact that costly presents were given to her during her marriage; (2) the inaction having regard to the non-participation of Khathija Bibi or even the plaintiffs after her death for a long period would spell out ouster; (3) some of the items of the properties not belonging to the family have included in the decree for partition; and (4) in any event it has to be proved by the plaintiffs that the suit properties were purchased from out of the income belonging to the joint family. The 6th defendant filed a written statement contending that the acquisition made by him are totally independent and had nothing to do. The suit was also barred by time. The other defendants viz., 7th, 8th, 9th, 10th, 12th, 13th, 19th and 22nd filed separate written statements asserting their independent title to these properties. On these pleadings, the following issues came to be framed -

1. Whether the plaintiffs are entitled to partition and separate possession of their share in the suit properties?

2. Whether the suit properties are the separate properties of Kadersha Rowther or the joint properties of Kadersha Rowther and his brother Meeranan Rowther (6th defendant)?

3. Whether the oral partition alleged to have been effected between Kadarsha Rowther and the 6th defendant in 1942, and the subsequent oral partition alleged to have been effected between defendants 1, 2 and 6 in 1947, are true?

4. Whether the partition effected between defendants 1, 2 and 6 by means of a registered partition