MALANBEE Vs. WAHED MIRZA BHURU MIRZA

JUDGEMENT

(1.) THE original plaintiff Malanbee wd/o Sheikh Gafoor by invoking the jurisdiction of this Court under Section 100 of the Code of Civil Procedure has filed this appeal challenging the judgment and decree dated 28-3-1990 passed by the Additional District Judge in Regular Civil Appeal No. 124 of 1985, whereby the appeal was dismissed and the judgment and decree passed by the trial Court on 31-1-1985 declaring that the plaintiff is entitled to 7/8th share in the field property mentioned therein and directing partition through the Collector in view of Order 20, Rule 18 read with Section 54 of the Code of Civil Procedure is set aside and the appellate Court dismissed the regular civil suit filed by the plaintiff seeking share in the connected Survey No. 158/1, admeasuring 4 acres 31 gunthas after the amendment in the plaint.

(2.) THIS litigation has a chequered history. One Sheikh Sardar had executed a Will dated 2-2-1916 bequeathing his property to his three daughters before his death. Sheikh Sardar died on 4th April, 1928. He had two wives, namely Hayatbi, who predeceased him and Bunabai. Sheikh Sardar died on 4-4-1928 leaving behind him his widow Bunabai and one daughter Karimbi only. The two daughters Bunabi and Aminabi predeceased Sheikh Sardar. Karimbi died on 15-7-1935 leaving behind her daughter Malanbee. Defendants No. 1 Waheed Mirza is the son of brother of Bunabai w/o Sheikh Sardar and the dispute about partition started between them. The plaintiff Malanbee filed suit for partition and separate possession of her 7/8th share in the property based on the Will of her father Sheikh Sardar. The subject-matter of the suit was the agricultural field survey No. 158/2 and agricultural field survey No. 134. Defendant No. 1 claimed that Bunabai had gifted the agricultural land by execution of gift-deed dated 23-4-1951 and, therefore, he is entitled to retain the possession.

(3.) ON the death of Sheikh Sardar, Karimbi filed a suit against Bunabai for partition and possession of her 7/8th share in the property disclaiming the Will and claiming as a daughter and entitled to take that property by inheritance. Bunabai in that suit contended that she was entitled to retain that property under the Will and was also entitled under the Mohammaden Law to hold on its possession until the dower was paid. She claimed in the alternative her 1/8th share by inheritance excluding 1/3rd under the Will absolutely.