Subaida Beevi vs K.K.Sini
2021 Latest Caselaw 17533 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
              THE HONOURABLE MR. JUSTICE P.SOMARAJAN
     THURSDAY, THE 26TH DAY OF AUGUST 2021 / 4TH BHADRA, 1943
                          RFA NO. 11 OF 2021
 AGAINST THE ORDER/JUDGMENT IN OS 56/2016 OF PRINCIPAL SUB COURT,
                          PALAKKAD, PALAKKAD
APPELLANT/DEFENDANT:

          SUBAIDA BEEVI, AGED 83 YEARS,
          W/O. KABEER RAWTHER, RESIDING AT C/O. SAMEENA BEEGAM,
          NEWYORK AVENUE, HOUSE NO.3536, PODUNNUR POST,
          COIMBATORE, TAMILNADU-641023.

          BY ADVS.
          SAJAN VARGHEESE K.
          SRI.LIJU. M.P



RESPONDENTS/PLAINTIFFS:

    1     K.K.SINI, AGED 44 YEARS,
          W/O. LATE SYED MUHAMMED, RESIDING AT KATTUCODE,
          VADAKKENCHERRY AMSOM AND POST, ALATHUR TALUK, PALAKKAD
          DISTRICT-678683.

    2     SAJAD MUHAMMAD S., AGED 19 YEARS,
          S/O. LATE SYED MUHAMMED, RESIDING AT KATTUCODE,
          VADAKKENCHERRY AMSOM AND POST, ALATHUR TALUK, PALAKKAD
          DISTRICT-678683.

          BY ADVS.
          R.HARISHANKAR
          SMT.PARVATHY NAIR




     THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON
26.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 RFA NO. 11 OF 2021                             2

                                        JUDGMENT

The preliminary decree for partition is under

challenge by the defendant. The defendant is the

mother of the person whose property sought to be

partitioned in the suit. In so far as item No.1 is

concerned there is not much dispute with respect to the

decree.

2. The item No.2 is the property originally

belonged to the mother, the defendant in the suit.

Admittedly, it was sold to her son under Ext.A2 sale

deed of the year 2008. He passed away leaving the

plaintiffs, his wife, one child and the mother, the

defendant. Though, she claimed that it is her property

and the sale deed was executed only as a nominal one

and had not taken into effect, no relief sought in that

behalf presumably on the reason that the time available

for challenging the document stood hopelessly barred by

limitation as on the date of the suit. Hence, it

deserves no interference.

3. A property was scheduled in the written

statement though no counter claim relief sought by

making proper court fee. Based on it, it was argued

that the present suit is bad for partial partition.

There is no merits in the said contention simply

because of the reason that even according to the

defendant, the said property scheduled in the written

statement stands in the name of plaintiffs as per the

title deed of the year 2003 and no prayer was

incorporated in the suit either to declare the said

property as that of the deceased husband of the first

plaintiff or to declare the same as the property

obtained by utilising the funds of her husband,

presumably on the reason that the said claim would not

stand due to long lapse of more than 13 years from the

date of suit. Hence, even if it is raised as a counter

claim it will not serve any purpose and hence, the suit

is not bad for partial partition. The appeal hence

fails, dismissed. No costs.

Sd/-

P.SOMARAJAN JUDGE msp