The trial Court dismissed the suit on the ground that during the life time of father himself there was a partition of properties and though the defendants have set up a claim that there is a partition list, the trial Court dismissed the suit mainly relying on the evidence available on record that there is a partition during the life time of their father himself and he has allotted 44 sq yards for each of the four sons as the daughters said to have relinquished their rights by executing a registered relinquishment deed. - It is true that partition list and the relinquish deed is not filed, and if that is the case, the suit filed by the plaintiff is not maintainable for non-joinder of the daughters as parties inasmuch as according to the plaintiff the daughters are also entitled for their share. I am of the opinion that though the trial Court discussed about the partition list and the relinquish deed, mainly relied on the division of the said property during the life time of the father and held that the said division and allotment shall be treated as oral gift, and in fact, each of them are in separate possession and enjoyment of their 1/4th share. For the foregoing reasons, I do not see any question of law much less a substantial question of law that arise for consideration in this Second Appeal. The Second Appeal is accordingly dismissed. No costs.

 

 

THE HON'BLE MR JUSTICE V ESWARAIAH 

 

SECOND APPEAL No.95 of 2011

DT.29.10.2011

Between:

Shaik Samba Mastan Saheb

… Petitioner

And

 

Khasim Saheb & Ors.

                                             … Respondents

 

Counsel for the Petitioner: Sri Sreerama Murthy

                                                             

                                                       

Counsel for respondent: Sri

The Court made the following ORDER:

 

THE HON'BLE MR JUSTICE V ESWARAIAH

SECOND APPEAL No.95 of 2011

ORDER:

The appellant is the plaintiff, who filed the suit for partition and separate possession of 1/4^th share in the plaint ‘A’ Schedule property of an extent of 202.05 sq yards in T.S.No.41/2, 9^th Ward, 3^rd Block of Tenali, Guntur District. 

There is no dispute that the appellant and the respondents 1 to 3 are the brothers and that the said property belongs to their father late Farid Saheb.  It is the case of the appellant that their father died on 16-3-1991 and as per Muslim Law all the sons and daughters are entitled to equal shares.  D.4 is the purchaser of part of the properties stated to have been fallen to the share of D.1 to D.3.  The trial Court dismissed the suit on the ground that during the life time of father himself there was a partition of properties and though the defendants have set up a claim that there is a partition list, the trial Court dismissed the suit mainly relying on the evidence available on record that there is a partition during the life time of their father himself and he has allotted 44 sq yards for each of the four sons as the daughters said to have relinquished their rights by executing a registered relinquishment deed. 

          The learned counsel for the appellant submits that the partition list as also the relinquishment deed has not seen the light of the day.  It is true that partition list and the relinquish deed is not filed, and if that is the case, the suit filed by the plaintiff is not maintainable for non-joinder of the daughters as parties inasmuch as according to the plaintiff the daughters are also entitled for their share.  I am of the opinion that though the trial Court discussed about the partition list and the relinquish deed, mainly relied on the division of the said property during the life time of the father and held that the said division and allotment shall be treated as oral gift, and in fact, each of them are in separate possession and enjoyment of their 1/4^th share.

For the foregoing reasons, I do not see any question of law much less a substantial question of law that arise for consideration in this Second Appeal.  The Second Appeal is accordingly dismissed. No costs.

_______________

(V.ESWARAIAH,J)

DATE: 29.10.2011

grk

THE HON'BLE MR JUSTICE V.ESWARAIAH 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SECOND APPEAL No.95 of 2011

DT.29.10.2011

GRK