- (1.)SHORT episode : The appellants herein are defendants 1, 2 and 4 in O. S. No. 212 of 1984 on the file of the Subordinate Judge, Nuzvid. In view of the fact that first appellant died, the legal representatives were brought on record as appellants 4 to 7. Likewise, R-2 and R-3 in the appeal also died and the legal representatives were brought on record.
(2.)THE suit was originally filed as O. S. No. 349 of 1981 on the file of the Subordinate Judge, Vijayawada, which was re-numbered as O. S. No. 212 of 1984 on the file of the Subordinate Judge, Nuzvid. The suit was originally instituted by Pasha Begum praying for the relief of partition and separate possession and the third defendant in the suit Mohammad Shabbar Sheriff was transposed as second plaintiff by virtue of an order made in I. A. No. 294 of 1985, dated 13. 11. 1985. On the strength of the respective pleadings of the parties, the learned Subordinate Jgdge, Nuzvid, having settled the issues, recorded the evidence of P. Ws. 1 to 4, D. Ws. 1 to 4, marked Exs. A-1 to A-7 and Ex. B-1 and ultimately came to the conclusion that the plaintiffs are entitled to the preliminary decree for partition, except item No. 7 which is not liable for partition.
The principal defence, which had been put forward by the contesting defendants, the present appellants, was that the second plaintiff shown as second respondent in the appeal, who is no more, embraced Christianity and, hence, the Muslim law is not applicable and, hence, such party cannot maintain an action for partition. Further inasmuch as he had taken certain amount and had relinquished his rights, if any, in the family and had gone away from the family long long ago, by virtue of abandonment and also ouster he is not entitled to any share whatsoever. The learned Subordinate Judge, Nizvid, on appreciation of evidence available on record, came to the conclusion that there is no acceptable evidence to show that in fact the second plaintiff became a Christian and he continued to embrace or practice Islam only in the light of his subsequent conduct also and further the contesting defendants miserably failed to prove either relinquishment or abandonment or ouster, as the case may be, and ultimately came to the conclusion that the plaintiffs are entitled to the reliefs prayed for as already specified above. It is also stated that the mesne profits enquiry had been further proceeded with in pursuance of the present preliminary decree.

(3.)CONTENTIONS of Sri A. Venkateswara Sri A. Venkateswara Sarma, learned counsel representing the appellants would maintain that from the evidence available that certain of the parties, inclusive of the second plaintiff, had received their shares by way of receiving certain amounts during the lifetime of the father and this aspect was not properly appreciated by the trial court. The learned counsef also would maintain that the document dated 05. 01. 1977 would clearly go to show that these parties received their respective shares. The counsel also would maintain that even as per Ex. A-6, the respondents relinquished their rights and the document executed dated 05. 01. 1977 was subsequent one and they are complimentary to each other, but however, the trial court had taken the same as contradictory to each other and delivered judgment in favour of the contesting respondents which is contrary to law. The learned counsel also pointed out how the document dated 05. 01. 1977 was sent to the Revenue Divisional Officer, for the purpose of impounding and the objections raised and the submissions made in this regard and how erroneous findings had been recorded by the trial court in this context. The learned counsel also would maintain that the second plaintiff left the family even during the lifetime of his father and became a Christian and such a party, who had abandoned all his rights in the family and left the family once for all embracing a totally different religion, cannot maintain an action for partition claiming to be a Muslim and as though Mahomedan law applies to such party and hence the suit is not maintainable. The learned counsel made elaborate submissions pointing out certain of the admissions made by the witnesses in general and P. W. 1 in particular. The I earned, counsel had placed before this Court a memo filed on behalf of appellants and respondent No. 1 and would maintain that there was partial settlement and this branch representing Mohammad Shabbeer Sheriff alone is not coming forward to amicable settlement. The learned counsel also pointed out to the contents of the affidavit filed in support of the application in A. S. M. P. No. 1521 of 2008 and would maintain that in the facts and circumstances of the case and also in the light of subsequent events, especially, in view of the fact that the second plaintiff, originally the third defendant, was transposed as second plaintiff, these additional issues are to be framed and if necessary the matter to be remanded.