IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:

THE HONOURABLE MR.JUSTICE K.HARILAL &

THE HONOURABLE MR. JUSTICE A.M.BABU FRIDAY, THE 19TH DAY OF JANUARY 2018 / 29TH POUSHA, 1939 Mat.Appeal.No. 501 of 2010 AGAINST THE JUDGMENT DATED 12-05-2010 IN OP 480/2006 of FAMILY COURT, KANNUR APPELLANT/RESPONDENT: --------------------- ARIYAKKANDY MUSTHAFA, S/O.MOIDU,AGED 56 YEARS,"RUBY VILLA", LOADAKKUNNU, AZHIKODE,KANNUR.

BY ADVS.SRI.P.M.PAREETH SRI.MOHAMMED SHAMEEL RESPONDENTS/PETITIONERS: ------------------------

1. LAMBETH PUTHIYAPURAYIL RASIYA & OTHERS, W/O.MUSTHAFA, AGED 48 YEARS, "THAVAKKAL"NEAR KATTALANGARA PALLI, VALAPATTANAM P.O., KANNUR.

2. ASHITHA, D/O.RASIYA,AGED 29 YEARS, "THAVAKKAL" NEAR KATTALANGARA PALLI, VALAPATTANAM P.O., KANNUR.

3. ANEESA,D/O.RASIYA, AGED 25 YEARS, THAVAKKAL,NEAR KATTALANGARA PALLI, VALAPATTANAM P.O.,KANNUR.

4. AFSHIN,D/O.RASIYA,AGED 21 YEARS, "THAVAKKAL", NEAR KATTALANGARA PILLAI, VALAPATTANAM P.O., KANNUR.

5. ARSHAD, S/O.RASIYIA, AGED 18 YEARS, THAVAKKAL",NEAR KATTLANGARA PILLAI, VALAPATTANAM P.O., KANNUR.

6. RUBEENA, D/O.RASIYA, AGED 17 YEARS,(MINOR), THAVAKKAL, NEAR KATTALANGARA PALLI, VALAPATTANAM P.O., KANNUR.

7. AFTHAB,S/O.RASIYA,AGED 15 YEARS,(MINOR)

THAVAKKAL,NEAR KATTALANGARA PALLI, VALAPATTANAM P.O., KANNUR.

*ADDL. 8TH RESPONDENT IMPLEADED: --------------------------------

T.P. VASUDEVAN, AGED 46 YEARS, S/O. NARAYANAN, THAZHEPADIKKAL HOUSE, KALARIVATHUKAL, VALAPATANAM, KANNUR IS IMPLEADED AS ADDL. RESPONDENT NO.8 AS PER ORDER DATED 18.08.2017 IN I.A. NO.2971 OF 2017.

R1-4,6,7 BY ADV. SRI.N.M.MADHU R1-R4,R6,R7,R5 BY ADV. SRI.V.R.KESAVA KAIMAL ADDL.R8 BY ADV. SRI.K.ANAND THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 19-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

DST K. HARILAL & A.M. BABU,JJ.

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Dated this the 19^th day of January, 2018

J U D G M E N T

A.M. Babu,J.

Appellant is the respondent in O.P. No.480/2006 on the file of the family court, Kannur. Petitioners therein are respondents 1 to 7 herein. A third party to the proceedings got himself impleaded in the appeal as the additional 8^th respondent. The original petition before the family court was one for partition of a property. The parties are referred to in this judgment as they are shown in the memorandum of appeal.

2. The case of respondents 1 to 7 is stated briefly as follows: The first among them is the wife of the appellant. The children of the couple are respondents 2 to 7. Parties are muslims. The marriage was on 04.11.1976. The appellant and respondents 1 to

7 were residing under one roof. The appellant was cruel to the 1^st respondent. The former was funded by the brother of the latter to discharge a debt. Therefore the appellant gifted his ⁷/ shares in the

8 petition schedule property to respondents 1 to 7. A gift deed was executed on 24.07.1996. The donor retained ¹/ share in the property with him. The

8 original gift deed was handed over to the 1^st respondent. The donor as well as the donees continued their residence in the petition schedule property. While so, the appellant wanted respondents 1 to 7 to vacate the house in the property. When that was refused, the appellant had taken the original gift deed by force. On 16.07.2006 respondents 1 to 7 were ousted from the house. The petition schedule property is liable to be partitioned to separate one out of eight shares of respondents 1 to 7.

3. The appellant filed a counter-statement. His contentions go as under. All the allegations against him including cruelty are false. The spouse who was cruel to the other spouse was not the appellant, but the 1^st respondent. The allegation that the petition schedule property was purchased with the funds provided by the brother of the 1^st respondent is false. Equally false is the allegation that the said brother had funded the appellant to discharge debts. He himself raised funds and discharged his debts. The petition schedule property was always in the possession of