JAMAL MOHAMMAD Vs. MOHAMAD UNUS

JUDGEMENT

(1.) THIS appeal by the first defendant is preferred against the Judgment and decree dated 21.9.1992 passed in A.S. No. 442 of 1982 and Cross Objection by the learned single Judge.

(2.) THE appeal arises out of a suit for partition and separate possession filed by one Sikkandar, who died during the pendency of the suit and his legal representatives have been brought on record. THE trial Court decreed the suit in the following terms: "In the result, there will be a preliminary decree for partition and separate possession of the plaintiff's 4/7th share in suit items 1 to 3 and 5 to 7. THE plaintiffs are also entitled to 4/7th share in the redemption of other amount of Ex. A.14, i.e., in Rs. 700/- due to the joint family from the first defendant. It will be adjusted at the time of passing of final decree for partition by way of equity. THE suit in other respects is dismissed. In the circumstances of the case, both parties are directed to bear their respective costs."

(3.) LEARNED counsel for the appellant has confined the arguments in so far as the judgment and decree under appeal, relate to item No. 4. It is contended that, no doubt, item No. 4 was mortgaged to the original plaintiff, but, as the first defendant came to purchase the same by paying a sum of Rs. 2,000/-, including a sum of Rs. 700/- which was the mortgage money, it became the self-acquired property of the first defendant. Therefore, the plaintiff would not be entitled to any share in it, except a share in the amount of Rs. 700/-. The trial Court has accepted this stand of the first defendant, whereas, learned single Judge has negatived it. Therefore, the following point arises for consideration in this appeal: