ASHOK SINGH Vs. NIZAMUL ISLAM ALIAS MUSA

JUDGEMENT

(1.) THE appellants who were arrayed as defendants in O.S. No. 276 of 1967 in the Court of Munsif City, Azamgarh, has preferred the instant second appeal assailing the judgment and decree dated 11.11.1975 passed by lower appellate court whereby it affirmed the judgment and decree dated 23.1.1973 passed by the trial court.

(2.) THE dispute in the suit instituted by the plaintiff before the Munsif City, Azamgarh was for the relief of partition and for permanent injunction in relation to property situated in village Harbanspur District Azamgarh. The property in question was originally owned by Sanwaroo who died and was survived by Smt. Muneshwari his widow and three daughters namely, Manuri, Chandauti and Chanati. In the property in question which is a dwelling house, Sanwaroo had half share while half share devolved on Banshi, his brother. It was claimed in the plaint that the property of the deceased to the extent of 1/2 share was inherited by his heirs and out of them, Smt. Manuri and Pardeshi son of Chanati daughter of Sanwaroo and by means of sale deeds dated 3.12.1966 and 4.1.1967 they alienated their entire share in the property to the plaintiff. Banshi and Muneshwari had alienated the entire property in favour of defendants on 9.2.1966, i.e., prior to execution of sale deeds by Smt. Manuri and Pardeshi son of Chanati as a consequence of which, it is alleged, the plaintiffs got 3/8th share whereas 5/8 share fell to the lot of the defendants. It is in this backdrop that the suit was filed for partition and for permanent injunction. In the written statement, the defendants repudiated the plaint allegations averring that Sanwaroo had died issueless leaving behind Mst. Muneshwari alone as his legal heir. It was further averred that Mst. Muneshwari was not the legally wedded wife but was his concubine and had come to live with the deceased after the death of her former husband and the issues who were said to be heirs of deceased were not born from the loins of deceased Sanwaroo. It was further averred that the sale deeds were forged and had been concocted by Murtaza and Mohd. Ahmad on account of litigation in Suit No. 304 of 1966.

(3.) SRI Vinay Kumar Singh, the learned counsel for the appellants raised three -fold arguments ; firstly that the findings that Manuri, Chandauti and Chanati were daughters of Sanwaroo are perverse and sale deed relied upon by the plaintiff do not confer any title upon the plaintiffs ; secondly even assuming that three ladies aforestated were the daughters of deceased Sanwaroo, was the plaintiff entitled to benefit flowing from Section 41 of the Transfer of Property Act? and thirdly, the plaintiffs were entitled to get protection of Section 23 of the Hindu Succession Act which is intended for male member of the family in the event of a dwelling house.