JUDGMENT :

(N. Mala, J.)

(Prayer: Appeal Suit is filed under Section 96 of the Code of Civil Procedure, against the Judgment and Decree dated 19.10.2012 made in O.S.No.159 of 2009 on the file of the V Additional District & Sessions Judge, (FTC – 3), Coimbatore.)

1. The plaintiffs in the suit are the appellants in the appeal. The appeal is filed against the Judgment and Decree of the trial Court in O.S.No.159 of 2009 dated 19.10.2012.

2. For the sake of convenience the parties herein will be referred to as per their rank in the trial court.

3. The brief facts necessary for the purpose of the appeal are as follows:

The first plaintiff and the plaintiffs 2 to 5 are the second wife and the children of the deceased Kaja Moideen. The first defendant is the first wife of the deceased Kaja Moideen and the defendants 2 to 4 are the children of the deceased Kaja Moideen through the first defendant. The deceased Kaja Moideen was the absolute owner of the suit property, having purchased the same under the Sale Deed dated 31.03.1975 vide document No.889/1975 before the Sub Registrar of Gandhipuram, Coimbatore.

4. According to the plaintiffs', the late Kaja Moideen was a businessman and earned good income from his business. After the purchase of the suit property late Kaja Moideen transferred half of the property to one A.Abdul Rawoof and in the remaining half of the suit property of 7 cents and 168 sq.ft., he constructed a commercial complex by name “Alif Complex” with 20 shops. The plaintiffs were residing separately at Door No.19/34, 2nd street, Salamath Nagar, Karumbukkadai, Coimbatore. At the time of the death of their father on 20.06.2001 the second and third plaintiffs were studying and the fourth and fifth plaintiffs were minors and hence the commercial complex as also the business of their father was maintained by the defendants who were older to the plaintiffs. According to the plaintiffs under the Mohammedian Law the marriage of the first plaintiff with the deceased Kaja Moideen was valid and as such as per the Mohammedian law the plaintiffs 2 to 5 and the defendants 2 to 4 together were entitled to 7/8th share in the ratio of 1 : 2, according to the relationship to the deceased as son or daughter and out of the remaining 1/8th share the first plaintiff and the first defendant were entitled to 50% each. After the completion of the second plaintiff's B.E. Graduation and on the plaintiffs 3 to 5 attaining majority the plaintiffs approached the defendants for partition of the suit property and for allotment of their respective shares therein. As the defendants did not come forward to partition the property as requested by the plaintiffs, the plaintiffs approached the local Muslim Jamath of Masjidul Munavara Hanafi Sunnath Jamath, Ilahi Nagar, Karumbukkadai for amicable partition. The said jamath advised the defendants to agree for amicable partition of the property of their father, but the defendants refused to heed to the same. The plaintiffs having failed in their attempt for an amicable partition caused a legal notice dated 10.11.2008, to which the defendants replied on 02.12.2008 raising untenable objections that their deceased father had given a hiba of the suit property to them. According to the plaintiffs the oral Hiba given to the defendants excluding the plaintiffs was improbable and unsustainable for their father never discriminated against them nor disclosed any such intention to deprive them of the suit property.

5. The plaintiffs therefore pleaded that the defendants had fabricated the oral gift with a dishonest intention to have wrongful gain and usurp the property by taking advantage of the young age of the plaintiffs 2 to 5. The plaintiffs further stated that the oral gift was never published and it was only through the defendants reply notice dated 02.12.2008 that the plaintiffs came to know of the oral gift. The plaintiffs contended that the declaration dated 28.07.2000 in favour of the defendants 2 to 4 was also unb