JAYDAYAL PODDAR Vs. BIBI HAZRA

JUDGEMENT

(1.) This appeal by certificate is directed against the appellate judgment and decree, dated the 31st October, 1962, in the High Court of Judicature at Patna.

(2.) The plaintiffs-appellants instituted a suit on 30-6-1956, in the Court of Subordinate Judge, Samastipur for a declaration of title and possession in respect of a pucca house in Plot No. 216, Ward III of Samastipur Municipality. It was alleged that Abdul Karim (Defn. No. 1) had out of his own funds, purchased this house in the name of his wife Mst. Hakimunnissa by a registered sale-deed, dated 10-5-1941, from one Abdul Motilib. After the purchase, Defendant No. 1, who was in possession of the house, executed two mortgage deeds, dated 6-1-1948 and 28-7-48,in favour of his son-in-law, Abdul Latif (Defendant No. 3), husband of Mst. Bibi Hazra (Defendant No. 2). Abdul Karim (Defendant No. 1), in order to clear the mortgage dues and for meeting other necessities, agreed to sell the house to Plaintiff No. 1 for a consideration of Rs. 20,000/-. Pursuant to this agreement of sale, Plaintiff No. 1 paid a sum of Rs. 10,209-4-0, by installments, to Defendant No. 1. Another sum of Rs. 2,990-12-0 was left with Plaintiff No. 2, for payment of the mortgage debts of Defendant No. 3. Rs. 6,800/-, the balance of the price, was paid in cash to the vendor at the time of the registration of the sale-deed on 25-5-1951. Thereafter Plaintiff No. 2 got this house mutated in the Municipal records in her favour. Despite the sale, defendants Nos. 1 to 3, acting in collusion, continued to be in illegal possession of the house.

(3.) Defendant No. 1, while admitting the execution of the sale deed dated 25-5-1951, pleaded that it was without consideration. He, however, asserted that the house had been purchased by him, and that Mst. Hakimunnissa was only his benamidar. The suit was resisted by Bibi Hazra, Defendant No. 2, on the ground that the house had been purchased by her mother, Mst. Hakimunnissa with her own money, she being a lady of considerable means; and, on Mst. Hakmunnissa's death in 1944, she (Mst. Hazra) inherited and came in possession of 12 annas share therein, while the remaining 4 annas share devolved on Defendant No. 1 according to Mohammedan Law by which the parties were governed in matters of succession. Mst. Hazra further pleaded that the sale deed, dated 24-5-1951 executed by Defendant No. 1 in favour of Plaintiff No. 2, being a fictitious and collusive document, was ineffective qua her share in the house.