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HIGH COURT OF KERALA
A. Muhamed Mustaque, Shoba Annamma Eapen, JJ
VALIYAPARAMBATH ASHRAF – Appellant
Versus
VALIYAPARAMBATH NOORUDHEEN – Respondent
RFA 263 2018
Partition - Appeal - Preliminary Decree and Share Distribution - Sections Involved
Fact of the Case:
The third plaintiff appealed in a partition suit regarding the allocation of a house to the fourth defendant and the distribution of an account held by HDFC Bank among heirs of the deceased.
Finding of the Court:
The court found that no evidence was presented at the preliminary decree stage to justify exclusive allotment of the house to the fourth defendant, necessitating its reassessment at the final decree stage. The division of the bank account was modified to reflect appropriate shares according to gender-based inheritance rules.
Issues: The issues concerned the validity of the preliminary decree allotting a house to one party and proper distribution of a bank account among heirs according to Islamic inheritance principles.
Ratio Decidendi: The court emphasized the necessity of presenting evidence at the preliminary decree stage and the application of Islamic law regarding gender-specific shares in inheritance.
Final Decision: The preliminary decree is set aside, allowing for a reevaluation of the house allotment, and the bank account share distribution is modified to reflect appropriate gender ratios.
J U D G M E N T
A.Muhamed Mustaque, J.
The controversy in this appeal, filed by the third plaintiff in a suit for partition, can be set right by setting aside the allotment of house in the preliminary decree granted in favour of the fourth defendant and allowing parties to claim allotment of house in the final decree proceedings. It is to be noted that no one has adduced oral evidence to claim allotment of house on equitable ground at the preliminary decree stage. In that scenario, it was not safe to allot house in the plaint schedule property exclusively in favour of the fourth defendant. Therefore, preliminary decree to that extent is set aside. We are of the view that the fourth defendant or any other parties to the suit can claim for allotment of the house at the final decree stage after giving them an opportunity to adduce evidence for such claim.
2. Yet another claim by the appellant-
plaintiff was in regard to 'B' Schedule amount lying with HDFC Bank, Nadapuram Branch. As seen from Ext.X1, the bank account was opened by six persons, though the front page of the account shows only the names of three persons. The parties are now seeking share of Pathu, their deceased mother. The question is in regard to share of Pathu. We also sought assistance of the learned Standing Counsel of HDFC Bank to ascertain whether the account was opened by six persons or three persons. He submitted that the account was opened by six persons. That be the case, Pathu would have only 1/6th share and the appellant can only claim to that extent, being the legal heir of Pathu. However, we note that the court below ordered division of the share of Pathu in equal moiety. The parties being Muslims, male takes double share than female. Therefore, 1/6th share of Pathu will have to be divided among male and female in the ratio of 2:1. The decree, therefore, is modified to that extent, holding that 1/6th share of Pathu will have to be apportioned among her legal heirs in the ratio of
2:1 between male and female.
The appeal stands disposed of as above.
A.MUHAMED MUSTAQUE, JUDGE
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