The court upheld that claims of prior oral partition without substantiated evidence should be rejected and reinforced that formal legal processes govern inheritance shares, leading to a division of property among heirs.

JUDGMENT :

G.R.Swaminathan, J.

This appeal arises out of a suit for partition. The respondents 1 and 2 herein, namely, Alavudheen and Azeez filed O.S.No.104 of 2012 on the file of the Additional District Judge (FTC), Palani claiming 56/96^th share in the suit schedule properties for themselves.

2.The first defendant/appellant herein Akbar Seit is the brother of the plaintiffs. Valarmathi/third respondent herein was shown as the second defendant. She is their sister. The case of the plaintiffs is that the suit scheduled properties belonged to the father Jamal Mohamed. Jamal Mohamed died intestate in the year 1993.

3. The suit was mainly contested by the appellant/first defendant. He filed written statement raising several defences. Based on the rival pleadings, the Court below framed the issues.

4.The second plaintiff examined himself as PW1. Ex.A1 to Ex.A13 were marked. The first defendant examined himself as DW1. Two other witnesses including a Jamathar were examined on his side. Ex.B1 to Ex.B16 were marked. After considering the evidence on record, the trial Court granted preliminary decree as prayed for on 15.04.2019. Challenging the same, this Appeal came to be filed.

5.The learned counsel appearing for the appellant/first defendant raised the following contentions:

a) The suit is bad for partial partition since it did not include certain other items pointed out in the written statement

b) The property belonging to the mother was also included

c) Item no 5 is a Government Poramboke land and it could not have been a subject matter of partition

d) The sixth item is a bank deposit and the second defendant was already shown as a nominee

e) A oral partition had also taken place in the year 1993 and this was duly substantiated by the Jamadar/DW3

f) As per Muhammedan law, the shares allotted to the parties is incorrect.

He called upon this Court to set aside the impugned judgment and decree and allow this Appeal.

6. Per contra, the learned counsel for the plaintiffs submitted that the impugned judgment and decree do not call for interference.

7. We carefully considered the rival contentions and went through the evidence on record.

8. The point that arises for consideration is whether the Court below was right in allotting 56/96^th share in the suit schedule properties.

9. The specific case of the plaintiffs is that the suit schedule items, namely, items 1 to 5 which are immovable properties belonged to their father Jamal Mohamed and that he died intestate. Though the appellant pleaded that a oral partition had taken place among the family members in the year 1993 itself, it was not at all substantiated. In other words, the plea of prior oral partition had not been established at all.

10. On the other hand, by marking Ex.A5 and confronting the defendant with the said document, the plaintiffs have proved that no oral partition had taken place. Ex.A5 is the certified copy of the plaint filed by the first defendant against one Siraj-ud-din in O.S.No.99 of 2009 on the file of District Munsif Court, Kodaikanal. It was a suit for permanent injunction. It comprised suit schedule items 1 and 4. We carefully went through the plaint averments set out therein. The defendant had pleaded in the said suit that the suit schedule were belonged to Jamal Mohamed and following his demise it was being enjoyed in common by all the legal heirs and since the other legal heirs were residing elsewhere, he was managing on behalf of all the legal heirs. In the said plaint, there