JUDGMENT

1.This appeal has been filed against the Judgment and Decree dated 24.08.2001 passed in A.S.No.79 of 1997 on the file of the II Additional District Judge,Tirunelveli, dated 24.08.2001 confirming the decree and Judgment dated 28.02.1997 passed in O.S.No.31 of 1993 on the file of the Principal Sub Judge, Tirunelveli.

2.The averments in the plaint:

The suit properties originally belonged to one Hussain Khan. He married three women. The first and second wife did not have any child. The plaintiff and the defendants are the children of third wife. At the time of death Hussain Khan left behind his mother, the second and third wives, three female children and one male child. On 10.09.1944, the mother and the second wife released their right in favour of third wife and her children. Ever since from that date the property are in possession and enjoyment of the plaintiff and defendant.

3.It was learnt that on 13.04.1987 the first defendant appears to have obtained a settlement deed from the mother. The mother got right to execute settlement deed only in respect of her share. If any settlement is executed by including the share of the plaintiff, it is not valid under law. It was also learnt that the mother did not give due consent for the execution of the settlement deed. She was aged about 80 years suffering from various ailments. The settlement deed never came into effect and it was not accepted. So that settlement deed is not binding upon the share of the plaintiff.

4.As per the Muslim Law, the plaintiff is entitled for 7/40 share, first defendant 7/40 share and 4^th defendant 5/40 share. The plaintiffs and defendants are in joint possession. He issued a notice on 09.12.1992, demanding partition of the suit properties, for which, the first defendant did not give any reply.

5.The brief averments made in the written statement of the defendants 1 to 4:

It is admitted that the suit property originally belongs to Hussain Khan. Hussain Khan is the husband of the 4^th defendant. The settlement deed dated 10.09.1944 is valid under law. Around 1962, there was family arrangement, by which, the defendants executed a sale deed in respect of the house bearing No.100 in Tirunelveli Town to the plaintiff's husband. Even at that time, the plaintiff orally released her share in favour of the 4^th defendant. The hiba was accepted by the 4^th defendant and she was in possession and enjoyment. After 1962 the plaintiff is not having any right in the suit properties.

6.On 13.04.1987, 15.04.1987, the 4^th defendant executed the settlement deed in favour of the first defendant with the consent of the plaintiff. In fact, the plaintiff took all steps to execute the settlement deed. Settlement was accepted and fourth defendant handed over the property to the first defendant. Ever since, he is in possession and enjoyment.

7.With the consent of the plaintiff the first defendant made improvement and repair works in the building. The first defendant's daughter is married to the plaintiff's son. When demand was made by the plaintiff and his son over the retirement benefit of the first defendant, the suit is filed by colluding each other. All other defendants were given hiba. The fourth defendant accepted the hiba and handed over the possession.

8.The brief averments made in the written statement of the second defendant:

The suit property absolutely belonged to the first defendant and this defendant has no right or interest.

9.The brief averments made in the written statement of the third defendant:

This defendant got 7/40 share in the property. She is entitled for the decree for 7/40 share and paid the court fee also.

10.The brief averments made in the reply statement filed by the plaintiff on 27.06.1997:

The family arrangement dated 01.09.1962 is denied as false. The sale deed executed in favour of the plaintiff's husband was for valid consideration. That property is not related to the suit property. The plaintiff by oral hiba gave the property to the plaintiff around 1962. It