IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 831 of 2008()
1. NAGOOR MOIDEEN RAWTHER,
... Petitioner
2. KADEEJA BEEVI, AGED 53 YEARS,
Vs
1. AMINA BEEVI, AGED 60 YEARS,
... Respondent
2. SALAMATH BEEVI, AGED 47 YEARS,
3. RASHEEDAMMA, AGED 50 YEARS,
For Petitioner :SRI.ESM.KABEER
For Respondent : No Appearance
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :02/06/2009
O R D E R
HARUN-UL-RASHID, J.
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R.S.A.No. 831 of 2008
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Dated this the 1st day of June, 2009
JUDGMENT
This Regular Second Appeal is filed against the judgment and
decree in O.S. 345/1999 on the file of the Munsiff Court, Adoor and against
the judgment and decree in A.S. No. 80/2007 on the file of Additional
District Court, Pathanamthitta. The plaintiffs in the suit filed I.A.
No.2951/2004 for passing the final decree. The trial court passed a
preliminary decree allotting 3/9 shares to the plaintiffs and the remaining
to the defendants. Defendants 1 and 2 have filed this Regular Second
Appeal. The parties hereinafter referred to as plaintiffs and defendants as
arrayed in the suit.
2. In the final decree proceedings the defendants 1 and 2
contended that the shares was against the provisions of the Muslim law.
According to defendants 1 and 2 the daughters (plaintiffs) are entitled to
get more than /9 shares . There were 4 daughters,4 sons and wife who
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were inherited the property of the deceased. According to them the
allotment of shares in the preliminary decree itself was totally incorrect.
The trial court concluded that If there was contest regarding the division
of shares according to the preliminary decree the defendants 1 and 2 can
challenge it in an appeal against the preliminary decree. The trial court
also held that these type of contentions cannot be entertained by it while
R.S.A. No. 831 of 2008 -2-
considering an application for passing the final decree.
In the final decree proceedings the Commissioner with the
assistance of the Surveyor has measured the property and prepared a
mahazar report and plan proposing how the partition was to be effected.
The Commissioner set apart /9 shares to the plaintiffs (daughters) and the
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remaining the property was allotted to the share of the defendants. The
trial court considered the objections to the Commissioner’s mahazar and
plan and held that the value given to the property by the Commissioner
would indicate that the Commissioner has assessed the value by taken into
consideration the entire plaint schedule property and held that the
objections were not sustainable in law.
The defendants filed appeal before the lower appelate court with a
delay of 1179 days which was barred by limitation. No sufficient reasons
were submitted in not filing the appeal within a reasonable time before the
lower appellate court. The petition to condone the delay of 1179 days in
filing the appeal is highly belated and therefore the lower appellate court
dismissed the delay petition and consequently the appeal. I find that no
grounds are made out in this second appeal to invoke Section 100 of the
C.P.C This second appeal is without any merit and accordingly dismissed .
HARUN-UL-RASHID,JUDGE
es
HARUN-UL-RASHID, J.
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R.S.A. No. 831of 2008
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JUDGMENT
2nd june, 2009