KADDEERANBI Vs. FATIMABI

JUDGEMENT

(1.) The question involved in this First Appeal is really speaking a very short one. The appellants before me are the original plaintiffs, who had filed a suit for partition and recovery of their share in the properties left by one Fate Sherkhan, husband of plaintiff No. 1 and father of the remaining plaintiffs. Practically the entire suit of the plaintiffs has been decreed. Only the plaintiffs' claim for share in house No. 1-15-101 situate at Deodi Bazar Chawk. Aurangabad, has been negatived. For the sake of convenience the said house bearing No. 1-15-101 will be referred to hereinafter as the 'suit house'. The present appeal by the plaintiffs relates to the claim pertaining to the suit house.

(2.) It will be useful setting out the relationship of the parties at this stage. Fate Sherkhan had 3 wives : (1) Fatimabi, who was defendant No. 1 in the lower Court, (2) Kadeeranbi, who was plaintiff No. 1 in the lower Court, and (3) Bholibi, who was dead before the suit. Daughter of Bholibi is Rasheedabi, who was defendant No. 8 in the lower Court, Kadeeranbi, plaintiff No, 1, has five children from said Fate Sherkhan. They were plaintiffs Nos. 2 to 6 in the lower Court. Fatimabi, defendant No. 1, has six children from Kate Sherkhan. They were defendants Nos. 2 to 7 in the lower Court.

(3.) The suit house originally belonged to one Muneerkhan. It came to be purchased by Mahboobkhan in the year 1949, There is no dispute that out of the price of Rs. 5,000/- a sum of Rs. 4,000/-was paid not by Mahboobkhan but by the said Fate Sherkhan to the vendor in the presence of the Sub-Registrar. An endorsement to that effect was made by the Registrar on the sale deed itself. In 1950 plaintiff No, 1 married said Fate Sherkhan. There is no dispute that a sale deed came to be executed by selfsame Mahboobkhan on 28-8-1963 in respect of the suit house, and the purchaser shown in the said sale deed was Mahboobkhan, who is none other than defendant No. 2 in these proceedings. Fate Sherkhan died on 16-6-1964. On 38-9-1966 the present suit was filed by the plaintiffs for their share in the entire property left by said Fate Sherkhan Including the suit house. The contention was: firstly, that the sale deed executed by Muneerkhan ostensibly in favour of Mahboobkhan was a benami transaction, that Mahboobkhan was only a benami-dar for Fate Sherkhan and that the sale was in fact taken by Fate Sherkhan benami in the name of Mahboobkhan on account of certain superstitious belief. Secondly, that the sate by Mahboobkhan in the name of Mahboobkhan, defendant No. 2, was also a benami transaction and that the real transferee was none other than Fate Sherkhan himself. The contention, therefore, was that, in the ultimate analysis, defendant No. 2 was a benamidar for Fate Sherkhan and that, hence, the plaintiffs were entitled to a share in the suit house.