IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 17TH JUNE 2010 / 27TH JYAISTHA 1932 AS.NO. 144 OF 1996() -------------------- {O.S..197/1993 OF ADL.SUB COURT, THALASSERY} .................... APPELLANT(S)/DEFENDANTS 2, 12, 18 AND 20 TO 33: ------------------------------------------------------------- 1. EDAVANATHIRUVEL BEEVI, D/O.KUNHIMOOSA, AGED ABOUT 80 YEARS, RESIDING AT VANNANDAVIDA HOUSE, CHOKLI AMSOM, MENAPPURAM DESOM, THALASSERY TALUK, P.O. CHOKLI. 2. E.KUNHIMOOSA, MERCHANT, AGED 50, *DIED S/O.BEEVI, EDAVANA HOUSE, KANHIRATHINKEEZHIL, P.O. CHOKLI, CHOKLI AMSOM DESOM. 3. E. ABDUL SATHAR, AGED 38, S/O. BEEVI, POST BOX NO.2629, SALALAH, 221, SULTANATE OF OMAN, NOW AT EDAVANA HOUSE, KANHIRATHINKEEZHIL, P.O.CHOKLI, VANNANTAVIDA, CHOKLI AMSOM DESOM. 4. E.NAFEESA, D/O.BEEVI, AGED 55, *DIED PROFESSION NIL, EDAVANA HOUSE, KANHIRATHINKEEZHIL, P.O.CHOKLI, VANNANTAVIDA, CHOKLI AMSOM DESOM. 5. E.FATHIMA, W/O.ABDULRAHIMAN, AGED 36 YEARS, C/O.E.ABDUL SATHAR, POST BOX NO.2629, SALALAH, 221, SULTANATE OF OMAN, NOW AT EDAVANA HOUSE, KANHIRATHINKEEZHIL, P.O.CHOKLI, DISTRICT KANNUR. AS.NO. 144 OF 1996 :: 2 :: 6. BULQUEES, W/O.RUAZ, PROFESSION NIL, AGED 34, EDAVANA HOUSE, KANHIRATHINKEEZHIL, P.O.CHOKLI, VANNANTAVIDA, CHOKLI AMSOM DESOM. DIST. KANNUR. 7. E.MUNEER, S/O.BEEBI, AGED 32, POST BOX NO.1031, CENTRAL POST OFFICE, SALALAH, 211 SULTANATE OF OMAN, NOW AT EDAVANA HOUSE, KANHIRATHINKEEZHIL, P.O.CHOKLI, DIST. KANNUR. 8. E. THARIZES, AGED 19 YEARS, PROFESSION NIL, S/O.FATHIMA, NASHWA, KAVIYOOR, CHOKLI, CHOKLI AMSOM DESOM, DIST. KANNUR. 9. E.PARVES, AGED 15 (MINOR), REP. BY MOTHER AND GUARDIAN, E. FATHIMA, W/O.ABDULRAHIMAN, AGED 36, C/O.E.ABDULSATHAR, POST BOX NO.2629, 211 SULTANATE OF OMAN, NOW RESIDING AT EDAVANA HOUSE, KANHIRATHINKEEZHIL, P.O.CHOKLI, DIST. KANNUR. 10. E.NAMAR, AGED 12, MINOR, REP. BY DO. DO. 11. E.NABEEL, AGED 10 YEARS, MINOR REP. BY DO. DO. 12. E.FAHAR, MINOR AGED 8 YEARS, REP. BY DO. DO. 13. E. NASHWA, MINOR, AGED 6 YEARS, REP. BY MOTHER AND GUARDIAN, E. FATHIMA, W/O.ABDULRAHIMAN, AGED 36, C/O.E.ABDULSATHAR, POST BOX NO.2629, 211 SULTANATE OF OMAN, NOW RESIDING AT EDAVANA HOUSE, KANHIRATHINKEEZHIL, P.O.CHOKLI, DIST. KANNUR. 14. E.VARDHA, MINOR AGED 4 YEARS, REP. BY MOTHER AND GUARDIAN DO. DO. AS.NO. 144 OF 1996 :: 3 :: 15. E. ASALAM RIYAS, AGED 15, MINOR, REP. BY MOTHER AND GUARDIAN E. BULQUES, W/O. RUAZ, AGED 34, EDAVANA HOUSE, KANHIRATHINKEEZHIL, P.O. CHOKLI, CHOKLI AMSOM DESOM. 16. E.RUBEENA RIYAS, AGED 12, MINOR, REP. BY DO. DO. 17. E.RISHIN RIYAS, AGED 12, MINOR, REP. BY DO. DO. IT IS RECORDED THAT APPELLANT NO.4 DIED AND THAT APPELLANT NOS. 6 AND 7 ARE HER LEGAL REPRESENTATIVES - VIDE ORDER DT. 18.11.08 ON MEMO DT. 11.11.08 CF 5713/08. BY ADV. SRI.C.KHALID SRI.N.GOPINATHA PANICKER SRI.R.O.MUHAMED SHEMEEM SRI.T.P.SAJID RESPONDENT(S)/ PLAINTIFFS AND DEFENDANTS 1, 3 TO 11, 13 TO 17 & 19: -------------------------------------------------------------------- 1. SAFIYA, D/O.KUNHASSAN, AGED 48, OCCUPATION NIL, RESIDING AT MEKKARA OTHYOTH ALIAS, PARAKKANDI IN KAVIYOOR DESOM, CHOKLI AMSOM, POST CHOKLI, THALASSERY TALUK. 2. AYISSABI, D/O.KUNHASSAN, AGED 30 YEARS, NO OCCUPATION, RESIDING AT MEKKARA OTHYOTH ALIAS PARAKKANDAI IN CHOKLI AMSOM, KAVIYOOR DESOM, POST CHOKLI, THALASSERY TALUK. 3. AMINA, D/O.USMAN, AGED 26 YEARS, DO. DO. AS.NO. 144 OF 1996 ::4 :: 4. SADIK, S/O.USMAN, AGED 22 YEARS, DO. DO. DO. 5. SAJID, S/O.USMAN, AGED 22 YEARS, DO. DO. DO. 6. LUKMAN, S/O.ABDUL KHADER, AGED 15 YEARS (MINOR) DO. DO. DO. 7. MUJEEB, S/O.ABDUL KHADER, AGED 15 YEARS (MINOR) DO. DO. DO. 8. MUHSABI, D/O.ABDUL KHADER, AGED 15 YEARS (MINOR) DO. DO. DO. MINOR RESPONDENTS (PLAINTIFFS0 6 TO 8 REP. BY GUARDIAN MOTHER NEXT FRIEND ASMA, AGED 45 YEARS, RESIDING AT MANIKOTH HOUSE, IN NALUTHARA AMSOM, PANDAKKAL DESOM, (PO) PANTHAKKAL. 9. EDAVANATHIRUVEL KUNHIMARIYUM, D/O.ANDRU, AGED 55 YEARS, NO OCCUPATION, RESIDING AT KOPPARAKANDIYIL IN CHOKLI AMSOM. MENAPRAM DESOM, THALASSERY TALUK (PO) CHOKLI. 10. E.KUNHALU, W/O.K.P.ABDUL KHADER, AGED 44, PROFESSION NIL, FEMINA, KANHIATHINKEEZHIL (POST), (PO) CHOKLI, CHOKLI AMSOM DESOM. 11. E.HASHIM, AGED 38, MERCHANT, S/O.MARIYUMMA, (PO) MEENANGADI, SOUTH WAYANAD, MEENANGADI AMSOM DESOM. 12. E.YOONUS, S/O.MARIYUMMA, AGED 26, FEMINA, KANHIRATHINKEEZHIL, (PO) CHOKLI. 13. E.KHALEEL, S/O.KUNHALU, AGED 22, BRILLIANT SNAKE BAR, NO.118, BROADWAY, MADRAS, MERCHANT. 14. E.SHAHANAS, S/O.KUNHALU, AGED 29, PROFESSION NIL, KANHIRATHINKEEZHIL, P.O.CHOKLI, RESIDING AT FEMINA, CHOKLI AMSOM DESOM. AS.NO. 144 OF 1996 :: 5 :: 15. E.RAHANA, AGED 17 YEARS, MINOR, 16. E.FAIJAS, AGED 15 YEARS, MINOR 17. E.RIHAT, AGED 12 YEARS, MINOR 18. E.JESMINA, AGED 9 YEARS, MINOR. DEFENDANTS 15 TO 18 ARE MINORS REP. BY GUARDIAN KUNHALU, W/O. ABDUL KHADER, AGED 44, FEMINA, KANHIRATHINKEEZHIL, (PO) CHOKLI. 19. E.ABDUL KHADER, AGED 48, MERCHANT, EDAVANA HOUSE, S/O.BEEBI KANHIRATHINKEEZHIL, (PO) CHOKLI, VANNANTAVIDA, CHOKLI AMSOM DESOM. 20. MAMMOOTTY, AGED 45, S/O.BEEBI, MERCHANT, URSHA VILLA, SEETHI SAHIB ROAD, THALASSERY, THALASSERY AMSOM, VADIKKAKAM DESOM. 21. E.ABDULRAHIMAN, S/O.BEEBI, AGED 44 YEARS, MERCHANT, MANAVATTY TEXTILES, SULTHAN BATHERY, SOUTH WAYNAD, BATHERY AMSOM DESOM. 22. E.ABDUL KAREEM, S/O.BEEBI, AGED 42, POST BOX NO.51721, DUBAI (UAE). 23. E. SUBAIR, S/O.BEEBI, AGED 40, POST BOX NO.3603, DOHA quarter, A.G. 24. E.SHAMSUDHEEN, S/O.BEEBI, AGED 33, BUSINESS, MALOOTTY READY MADES, SULTAN BATHERY, SOUTH WYNAD, BATHERY AMSOM DESOM. ADDL. 25 TO 30 (I MPLEADED) 25. T.K.MUNEERA, AGED 45 YEARS, W/O.LATE ABDUL KHADER, THRIPPANKANDY HOUSE, KANHIRATHINKEEZHIL, P.O.CHOKLI, THALASSERY, DISTRICT KANNUR. 26. A.K.SUMEEN, AGED 29 YEARS, D/O.LATE ABDUL KAHDER, DO. DO. AS.NO. 144 OF 1996 :: 6 :: 27. A.K.LUBNA, AGED 25 YEARS, DO. DO. 28. A.K.PAWAS, AGED 23 YEARS, DO. DO. 29. A.K.SUMIYA, AGED 21 YEARS, DO. DO. 30. A.K.LASNA, AGED 19 YEARS, DO. DO. R19 DIED AND RECORDED AND THE LEGALHEIRS OF THE DECEASED 19 IMPLEADED AS ADDITIONAL 25 TO 30 VIDE ORDER DT. 22.12.05 ON LA 4083/05. IT IS RECORDED THAT THE 9TH RESPONDENT DIED AND RESPONDCENTS 1 TO 12 (HER CHILDREN ARE HER LEGAL REPRESENTATIVES VIDE ORDER DT. 18.11.08 ON MEMO DATED 11.11.08 CR 5713/08. ADDITIONAL RESPONDCENT NO.31 IMPLEADED: 31 MOHAMMED PRASHI C.H. KUNHIMOOSA, AGED 36, EDAVANA HOUSE, KANHIRATHINKEEZHIL, POST CHOKLI, TELLICHERRY TALUK, KANNUR DISTRICT. IT IS RECORDED THAT THE SECOND APPELLANT DIED AND THAT THE LEGAL HEIR OF DECEASED 2ND APPELLANT IS IMPLEADED AS ADDITIONAL RESPONDENT NO.31 VIDE ORDER DATED 18.11.2010 IN IA 4809/08. ADV. SRI.CIBI THOMAS FOR R1-3 SMT.SANGEETHA S.KAMATH FOR SMT.VIDHYA. A.C FOR ADDL.R SMT.NAMITHA JYOTHISH FOR R41 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 17/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AS.NO. 144 OF 1996 :: :: ORDER ON C.M.P.No.952/96 IN AS.NO. 144 OF 1996 DISMISSED. Sd/- (THOTTATHIL B.RADHAKRISHNAN) JUDGE Sd/- (S.S.SATHEESACHANDRAN) 17.6.2010. JUDGE sk/- //true copy// P.S. To Judge. THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. --------------------------------------- A.S.No.144 of 1996 --------------------------------------- Dated this the 17th day of June, 2010 JUDGMENT S.S.SATHEESACHANDRAN, J. Preliminary decree and judgment passed in a suit for partition is challenged in the appeal. Some of the contesting defendants (defendants 2, 12, 18 and 20 to 33) in the suit have filed this appeal questioning the correctness of the decree passed by the court below upholding the case of the plaintiffs and directing division of the plaint property in accordance with the shares asked for in the plaint. Plaintiffs are respondents 1 to 8 in this appeal. 2. Brief facts involved in the case necessary for disposal of this appeal can be summed up thus: The case of the plaintiffs is that the property originally belonged to the thavazhi of one Edavana Thiruvel A.S.No.144 of 1996 :: 2 :: Kunhabdulla and others. A lease over the property (Ext.A1) was demised in 1927 in favour of two persons viz., Abdul Khader and Kunhamina for a sum of Rs.500/-. Pursuant to a suit for recovery of the property by the Karanavan of the thavazhi, a compromise was entered into and the lease was renewed in favour of Kunhamina, one of the lessees in Ext.A1, and her brother Assankutty vide Ext.A2 deed in 1946. Abdul Khader, one of the lessees under Ext.A1 deed, had already passed away before renewal of Ext.A2 deed. He was unmarried and his right over the lease devolved upon his father Kunhimoosa. He had three wives and, on his death, the right which had devolved upon him from his pre-deceased son Abdul Khader, devolved upon his spouses and children. Kunhamina, one among lessees under Ext.A1 deed, and also in Ext.A2 renewal deed, had two sons viz., Usman and Abdul Khader. Plaintiffs 6 to 8 are the children of Abdul Khader, who had pre-deceased Kunhamina. Usman, the other son of Kunhamina, according to the plaintiffs, purchased shares from A.S.No.144 of 1996 :: 3 :: several sharers, the wives and children of Kunhimoosa, and the total shares so purchased by him was 79/176. Usman also pre- deceased Kunhamina. On the death of Kunhamina her right over the property under Exts.A1 and A2 and also the 1/6th share she obtained from her son Usman devolved upon the wife and children of Usman and the legal heirs of Abdul Khader, another son, and also her daughter, the 1st defendant. Plaintiffs 1 to 5 are the children of Usman. 2nd defendant in the suit is the sister Kunhamina, and she is also entitled to a share in the property. Setting forth a case as above, the plaintiffs sought for division and separate allotment of their shares, as fixed and shown in the plaint. 3. 1st defendant remained ex parte. 2nd defendant resisted the suit claim for partition contending that the property is thavazhi property and all the members of the thavazhi are necessary parties. System of inheritance followed by the parties, it was contended, was Marumakkathayam. Admitting Ext.A1 lease A.S.No.144 of 1996 :: 4 :: deed and its renewal under Ext.A2, the case of the plaintiffs as to the devolution of rights on the death of Abdul Khader, one among the lessees under Ext.A1 deed in favour of Kunhimoosa his father, was disputed contending the leasehold is a thavazhi property. Purchases effected by Usman from the spouses and children of Kunhimoosa were also impeached contending that he did not obtain any right over the property. 4. Additional defendants 3 to 33 were impleaded in the suit in view of the contention raised by the 2nd defendant that all the members of the thavazhi are necessary for an adjudication of the dispute involved. Additional defendants 12, 20, 22 and 31 to 33 as one set, additional defendants 13, 14, 15, 19, 21 and 24 to 30 as another set, and 18th defendant separately, filed written statements raising identical contentions as canvassed by the 2nd defendant. 5. On the pleadings of the parties, the court below framed the issues for trial, among which the questions whether the A.S.No.144 of 1996 :: 5 :: plaint schedule property is thavazhi property or co-ownership property, and also whether Ext.A2 renewal deed conferred exclusive right on the lessees named therein - Assankutty and Kunhamina, were also raised for adjudication. No oral evidence was adduced by any of the parties. On the side of the plaintiffs Exts.A1 to A6, and for the defendants Exts.B1 to B6 were exhibited. Ext.A1 is the lease deed of 1927 and Ext.B1, a copy of the same. Ext.A2 is the renewal deed of 1946 and Ext.B2, a copy of the same. Exts.A4 to A6 are some assignment deeds taken by Usman, son of Kunhamina, from some of the sharers. Ext.A3 is an assignment deed in favour of the executant in Ext.A5, who transferred her rights obtained under that deed to Usman. Ext.B3 is an assignment deed executed by Assankutty and Kunhamina, the lesses under Ext.A2 renewal deed, with their sister Beevi, over a portion of the plaint property in favour of one Aboobacker. 6. Learned Sub Judge, after considering the pleadings and also the materials tendered, as referred to above, negativing A.S.No.144 of 1996 :: 6 :: the case of the defendants that the property is a thavazhi property held that it is a co-ownership property and passed the impugned preliminary judgment directing division of the property. Allotment over the property on division as claimed in the plaint was also upheld. Plaintiffs were found entitled to 1379 shares out of 2112 shares, the 1st defendant to 649 shares and the 2nd defendant to 84 shares in the plaint property. Decree was passed directing partition of the shares as determined in favour of the plaintiffs and also the 2nd defendant, but not to the 1st defendant since no court fee was paid by that defendant. Propriety and correctness of the decree and judgment passed by the learned Sub Judge is challenged by some of the contesting defendants in this appeal. 7. We have heard the counsel on both sides. The respective counsel has reiterated the arguments canvassed before the court below, with the plaintiffs contending that the property is divisible following the personal law of the parties - Mohammedan Law of inheritance - and the defendants (appellants) contending A.S.No.144 of 1996 :: 7 :: that the property is a thavazhi property and parties are governed by Marumakkathayam Law of inheritance which has been followed by the Muslims of North Malabar. 8. Perusing the judgment rendered by the learned Sub Judge, it is noticed that the cardinal issue that arose for adjudication whether the property is a thavazhi property or not, and also whether the devolution of the rights over that property on the sharers is governed by the Marumakkathayam Law of inheritance was not scrutinised with reference to the case advanced by both sides and also the materials tendered. In fact, we notice that none of the documents produced in the case has been examined by the court below to find out which of the rival case pleaded by the parties or any of them is acceptable. It is also seen that the claim for partition canvassed by the plaintiffs that on the death of Abdul Khader, one of the lessees under Ext.A1, his father Kunhimoosa succeeded to his rights as he had died unmarried and the rights so obtained by Kunhimoosa on his death A.S.No.144 of 1996 :: 8 :: devolved upon his wives and children was also not examined by the court below, despite such claim impeached by the contesting defendants. 9. The court below has considered Issue Nos.1 and 3 together. Issue Nos.1 and 3 are whether the plaint schedule property is a thavazhi property or co-ownership property, and whether the renewal deed dated 6.8.1946 is lawful and gives exclusive rights on Kunhamina and Assankutty. In the discussion of those issues, which are considered jointly, after adverting to the rival case of the parties, plaintiffs and defendants in the preceding paragraphs, the court below found both the issues in favour of the plaintiffs expressing its findings in paragraph 18 of the judgment, which read thus: “The counsel appearing for the plaintiffs argued that it is not a tavazhy property and hence it is to be partitioned according to the personal law of the parties. According to him, the Act of 1980 is not applicable to the facts of the case. It is the further case of the plaintiffs that all the A.S.No.144 of 1996 :: 9 :: members of the tavazhy are not impleaded in the suit, since they are not entitled for any share. According to the plaintiffs, the property of the son will be inherited by his father if the son dies without wives and issues, since it is a personal property. The contention of the defendants is that Exhibit A1 was in the name of Abdul Khader and Kunhamina and it was renewed in the name of Kunhamina and Assankutty. According to the defendants, this clears the fact that it is a tavazhy property. The document does not say anything about the tavazhy and as such it cannot be said that it is a tavazhy property. It is the further case of the plaintiffs that Usman purchased certain shares vide Exhibits A3 to A6 and now he has got a major portion in the property and after his death it is claimed by plaintiffs 1 to 5. According to the plaintiffs, the property being a personal property personal law is applicable and as such the property is to be treated as a co-ownership property. From the above discussion it is found that the property is to be treated as a co-ownership property and it is found that the document marked as Exhibit A2 is lawful and confers conclusive right of Kunhamina and Assankutty.” 10. Apparently, the 'Act' referred to above in the judgment as 'Act of 1980' by the court below is “The Mappila Succession Act (Act 1 of 1918)”. Other than the reference made A.S.No.144 of 1996 :: 10 :: by the counsel for the plaintiffs that such Act is not applicable, the court below has not considered whether or not such Act has any application to the case. Negativing the case of the defendants that it is a thavazhi property for the reason that the “document does not say anything about the thavazhi and as such, it cannot be said that it is thavazhi property”, the court below concluded that it is co-ownership property and the document marked as Ext.A2 “conferred conclusive right on Kunhamina and Assankutty, the lessees, who obtained the renewal of the lease under Ext.A1 deed”. If Ext.A2 had conferred conclusive right on Kunhamina and Assankutty, how the case of the plaintiffs that on the death of Abdul Khader, one of the lessees under Ext.A1 deed, his rights over the leasehold could have devolved upon his father Kunhimoosa and then later on his death to his wives and children, was not gone into, nor examined by the court, while granting a decree upholding the case of the plaintiffs and allotting them shares recognising the assignment obtained by Usman from the legal heirs of Kunhimoosa. A.S.No.144 of 1996 :: 11 :: None of the documents produced by the parties was looked into by the court below to examine the disputed questions involved, despite the absence of oral evidence from both sides. The claim of divisibility over an immovable property in a suit for partition, has to be examined with reference to the proof of pre-existing title/right over the property. More than the question whether law of inheritance applicable to the parties was the Mohammadan Law of inheritance or such personal law as modified by Marumakkathayam Law, have the parties established their joint tenancy over the property, and if so, are they entitled to division and separate allotment, necessarily, warranted scrutiny of the pleadings and also materials produced, and, then, entering of appropriate findings thereof by the court. However, there is no examination of any of those points and in fact total absence of consideration of such questions as well, while passing a preliminary judgment and decree allowing the plaintiffs' claim for partition as canvassed in their plaint. A.S.No.144 of 1996 :: 12 :: 11. Having regard to the time lag which had taken place after the institution of the suit, which was filed in 1993, we have examined the pleadings and also the materials available in the case whether the controversies involved can be given a quietus in the appeal by determining the right canvassed by the plaintiffs for division of the property and allotment of shares. The case canvassed by the plaintiffs that Kunhimoosa, the father of Abdul Khader, one of the lessees under Ext.A1 deed obtaining the rights of Abdul Khader on his death over the property is belied by the materials tendered by them, Exts.A1 to A6. Ext.A1 would disclose that the plaint property demised on lease belonged to the thavazhi of one Beeyathu. The executants of the lease deed are the children of Beeyathu, five sons and one daughter. She had another daughter Kunjuliyumma, who pre-deceased her. Ext.A1 would show there was division of the thavazhi property of Beeyathu during her lifetime with her children including Kunjuliyumma and pursuant thereto, first among the executants, the eldest son of A.S.No.144 of 1996 :: 13 :: Beeyathu, Pallikutty was in management of the property in terms of the settlement deed. The above settlement deed, a registered deed, executed by Beeyathu and her children in 1087, having not been produced, the conditions, if any, stated therein over the management of the property with the eldest son of Beeyathu remain undisclosed. Ext.A1 lease deed was demised in favour of two children of Kunjuliyumma, after her death viz., Abdul Khader and Kunhamina, and the amount of Rs.500/- fixed as premium was advanced by their father Kunhimoosa. The lease deed was executed as seen from Ext.A1, to discharge some outstanding debts then faced by the family. Execution of such a lease deed, after settlement was effected over the thavazhi properties as among members of that family would prima facie indicate, at that point of time, it was not a thavazhi property. Further more, the lease was taken in favour of the lessees Abdul Khader and Kunhamina with the funds advanced by their father, not a member of the thavazhi. The lessees under the document, even if it is assumed, for a A.S.No.144 of 1996 :: 14 :: moment, continued as family members of thavazhi of Beeyathu and the terms of settlement deed among the thavazhi had imposed continuance of the property as thavazhi property, still they had independent right as distinct and different from members of the thavazhi in the property which would continue till the lease is extinguished by any process known to law. 12. Ext.A2 renewal deed was in favour of Kunhamina, one of the lessees in Ext.A1 deed and Assankutty, her brother. Ext.A2 renewal deed was of the year 1946. Abdul Khader, one of the lessees under Ext.A1 deed had passed away before such renewal is not in dispute. His right under Ext.A1, on his death devolved upon his father Kunhimoosa, is the case of the plaintiffs. But Ext.A2 deed would show that on the death of Abdul Khader, his rights have devolved upon his sisters Kunhamina, Beevi and his brothers Kunhammada and Assankutty. When the renewal under Ext.A2 deed was taken in favour of Kunhamina and Assankutty, there is no reference of any devolution in favour of Kunhimoosa or A.S.No.144 of 1996 :: 15 :: as to whether he was alive on the date of renewal of the lease. Whether or not Kunhimoosa was alive on the date of Ext.A2 renewal deed, it is to be noted that the plaintiffs have not produced any material whatsoever to show that on the death of Abdul Khader, Kunhimoosa had obtained any right over the leasehold. Ext.A3 is an assignment deed executed by the heirs of Assankutty, one of the lessees in Ext.A2 renewal deed in favour of one Nafeesika. The document would show that Assankutty had earlier sold his share in the leasehold in favour of one Mammu Haji and later re-purchased it from him. It is also seen that he had purchased the share of Kunhammeda, his brother, over the leasehold by a registered sale deed in 1964, and improved the leasehold reconstructing the building. It is specifically stated in the document that only Assankutty, Kunhamina and Beevi, three of them alone, have right over the leasehold and the executants, the legal heirs of Assankutty, had conveyed the right which they had in the leasehold properties to the assignee. A.S.No.144 of 1996 :: 16 :: Whereas Ext.A3 deed would show that Assankutty had purchased the right in the leasehold from his brother Kunhammeda under a registered sale deed in the year 1964, the plaintiffs rely upon an assignment deed taken by Usman, the son of Kunhamina, registered sale deed dated 22.3.1982, from the wife and children of Kunhammeda to claim the share which Kunhammeda had obtained as a legal heir of his brother Abdul Khader, one among the lessees in Ext.A1 who pre-deceased him. Statements in Ext.A3 indicating that whatever right Kunhammeda had over the property had already been transferred in favour of Assankutty discredits Ext.A4 assignment deed taken by Usman, which is relied by the plaintiffs to claim shares on that basis over the suit property. Ext.A5 is an assignment deed taken by Usman from the purchaser viz., Nafeesa in Ext.A3 deed. Whatever is stated in Ext.A3 deed as to the devolution of right on the death of Abdul Khader, one among the two lessees in Ext.A1, with his rights devolving upon his two sisters and two brothers and not to his father Kunhimoosa, is reiterated in A.S.No.144 of 1996 :: 17 :: Ext.A5 deed, which also goes against the case canvassed