The main legal point established in the judgment is the application of the Doctrine of Return in determining the share of the wife in a partition suit, and the principle that the Doctrine of Return cannot be applied in the presence of another heir.

JUDGMENT

(Prayer: Appeal filed under Section 96 of the Code of Civil Procedure, against the preliminary decree and judgment passed in O.S.No.54 of 2004, dated 29.09.2016, on the file of the IV Additional District Court, Tirunelveli.)

JUDGMENT

RMT. TEEKAA RAMAN, J. & P.B.BALAJI, J.

1. The first defendant in a suit for partition is the appellant before us. After the demise of the first defendant, his legal representatives have been impleaded as appellants 2 and 3.

2. For the sake of convenience, the parties are referred to as per the ranking before the trial Court.

3. The suit was originally filed by Mohamed Meeran and others, seeking declaration of 234/448 share of the plaintiffs 2 to 12 in 6 items of the suit property. The case of the plaintiffs before the trial Court was that the suit property belonged to one Kadhar Mydeen Rowther, the husband of the first defendant. The said Kadhar Mydeen Rowther died intestate and without any issue, on 17.07.2000 and therefore, the first defendant was entitled to 1/4th share and the plaintiffs were entitled to 3/4th share. It is further stated in the plaint that the father of said Kadhar Mydeen Rowther, viz., Peer Mohamed Rowther had two brothers, viz., Muthu Meeran Rowther and Sheik Mydeen Rowther. The said Sheik Mydeen Rowther had two sons, viz., Mohamed Hussain and Ahamed Rowther. Both of them were no more. The 4th plaintiff is the son of Mohamed Hussain and the 5th plaintiff is the son of Ahamed Rowther. The other brother of Peer Mohamed Rowther, Muthu Meeran Rowther has a son, viz., Muthu Meeran, who was also no more. The plaintiffs 1,2,3 are the sons of Muthu Meeran. Samsudeen Rowther is the uterine brother of Kadhar Mydeen Rowther and stating that the plaintiffs are together entitled to 234/448 shares, prayed for a preliminary decree, along with a decree for future mesne profits and Rs.1,00,000/- as past mesne profits.

4. The first defendant filed her written statement resisting the suit for partition on the ground that her husband, Kadhar Mohideen Rowther orally gifted all his properties including the suit properties to her on 17.03.2000 and since the first defendant had accepted the gift, she has been in possession and enjoyment of all the properties and therefore, the plaintiffs do not have any right over the suit property and she sought for dismissal of the suit in entirety.

5. The fourth defendant filed a separate written statement stating that the plaintiffs have no right in the suit property and only the defendants 2,3 and 6 have together 3/4th share, the remaining 1/4th being the share of the first defendant.

6. The defendants 5 and 6 filed separate written statements stating that the plaintiffs are not legal heirs of the deceased Kadhar Mohideen Rowther and that at the time of his death, the properties dwelled only on his wife and uterine brother -Samsudeen Makthi Rowther. The said Samsudeen Makthi Rowther died on 31.08.2000 and both the first defendant and the said Samsudeen Makthi Rowther were alive at the demise of the Kadhar Mydeen Rowther and only the legal heirs of said Samsudeen Makthi Rowther and the first defendant are entitled to the suit properties and hence, they have also prayed for dismissal of the suit.

7. The first defendant filed an additional written statement stating that the first defendant had orally gifted the first schedule property to Mohamed Meeran, son of Peer Mohamed and that she orally gifted 5th and 6 th items of the plaint schedule properties to Sahul Hameedu, Kadhar Mydeen and Mohamed Meeran. That apart, she has also gifted orally 2nd item of the 4th schedule to Mohamed Anees and Mohamed Muthu Meeran and 4th schedule of 5th item to Kadhar Mydeen and Mohamed Meeran and all have accepted their respective gifts and they have been in possession of the respective properties gifted to them. None of them were impleaded in the suit and that the suit was also bad for non-joinder of necessary parties.

8. The 5th defendant filed an additional written statement stati