IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 2ND JUNE 2009 / 12TH JYAISHTA 1931 RSA.No. 831 of 2008() --------------------- AS.80/2007 of ADDL. DISTRICT COURT, PATHANAMTHITTA OS.345/1999 of MUNSIFF COURT, ADOOR .................... APPELLANTS/APPELLANTS/RESPONDENTS ------------------------------------------------------ 1. NAGOOR MOIDEEN RAWTHER, AGED 62 YEARS, KOTTAKOYIKKAL VEEDU, NEDUMANMURI, EZHAMKULAM VILLAGE, 2. KADEEJA BEEVI, AGED 53 YEARS, W/O NAGOOR MOIDEEN RAWTHER, KOTTAKOIKKAL VEEDU, NEDUMANMURI, EZHAMKULAM VILLAGE. BY ADV. SRI.ESM.KABEER RESPONDENTS/RESPONDENTS/PETITIONERS. ----------------------------------------- 1. AMINA BEEVI, AGED 60 YEARS, AMINA NIVAS, NEDUMANMURI, EZHAMKULAM VILLAGE. 2. SALAMATH BEEVI, AGED 47 YEARS, KOLLAMPARAMBIL VEEDU, ELAMANOOR MURI, ENADIMANGALAM VILLAGE. 3. RASHEEDAMMA, AGED 50 YEARS, ANJALI VEEDU, PANNIVIZHAMURI, ADOOR. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 02/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. NO. 1988 OF 2008 IN R.S.A. NO. 831 OF 2008 DISMISSED SD/- HARUN-UL-RASHID, JUDGE 2.6.2009 HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 831 of 2008 ---------------------------------------- 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 3/9 shares . There were 4 daughters,4 sons and wife who 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 3/9 shares to the plaintiffs (daughters) and the 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. --------------------------- R.S.A. No. 831of 2008 ---------------------------- JUDGMENT 2nd june, 2009