Mohan M. Shantanagoudar, J. - (1.) The judgment dated 05.09.2007 passed in S.A. No. 693 of 1994 by the High Court of Kerala at Ernakulam is the subject matter of this appeal. By the impugned judgment, the High Court set aside the judgment of the District Court, Thiruvananthapuram dated 12.07.1994 passed in AS No. 264/1989 and restored the judgment and decree passed in O.S. No. 144/1984 by the Additional Sub Court, Thiruvananthapuram dated 17.07.1989.
(2.) The facts leading to this appeal are that a suit for partition and possession of 14/16th share in the Plaint Schedule 'A' property and half the rights over Plaint Schedule 'B' property was filed by the Respondent No. 1 herein (original plaintiff). Defendant No. 1 in the suit, Mohammed Idris, is the brother of Mohammed Ilias, the father of the plaintiff, and Defendant Nos. 2 to 7 are the children of Mohammed Idris. Both the plaintiff's father and Defendant No. 1 are the sons of Zainam Beevi, who expired in 1955. Both Plaint properties belonged to her. Plaint Schedule 'A' property was gifted to Mohammed Ilias, based on a gift deed executed by Zainam Beevi. The case of the plaintiff is that Defendant No. 8 namely Saidat, was the first wife of Mohammed Ilias, and no issue was born out of the said wedlock. Thereafter, Mohammed Ilias married Valliamma in 1120 M.E. (as per the Malayalam Calendar, which corresponds to 1945 AD in the Gregorian system). Valliamma was a Hindu at the time of her marriage with Mohammed Ilias. Both Mohammed Ilias and Valliamma lived together as husband and wife at Thiruvananthapuram. Later, Valliamma was renamed Souda Beebi. Out of the said wedlock, Shamsudeen (the plaintiff) was born. Subsequent to the death of Mohammed Ilias in 1947 AD, Valliamma (Souda Beebi) married Aliyarkunju. The plaintiff claimed that he was the only son of Mohammed Ilias and on his death, he became entitled to 14/16th of the share in Schedule 'A' property. He also claimed half the share in Schedule 'B' property through inheritance after the demise of Zainam Beevi, as the same would have devolved upon the plaintiff, being the son of the predeceased son of Zainam Beevi, and Mohammed Idris, Defendant No. 1, being the only surviving son of Zainam Beevi. Hence, the suit was filed.
(3.) It is the case of the defendants that Valliamma was not the legally wedded wife of Mohammed Ilias and that she was a Hindu by religion at the time of marriage. She had not converted to Islam at the time of her marriage, and thus the plaintiff being the son of Valliamma, is not entitled to any share in the property of Mohammed Ilias. It is their further case that Mohammed Ilias had died two years prior to the birth of the plaintiff.;