AMENA BEWA Vs. TAHIR SK

JUDGEMENT

(1.) This second appeal arises out of a suit for partition.

(2.) Partition Suit No. 128 of 1976 was instituted in the Court of the learned Subordinate Judge, Malda by the predecessor-in-interest of this appellants, Kasur Ali Shaikh, alleging, inter alia, that 'ka' schedule property originally belong to Amru Seikh. Amru Seikh died in 1973 leaving behind two sons, that is, the plaintiff and the defendant No. 2 and three daughters, that is, defendant No. I, defendant No. 3 and defendant No. 4. The heirs and legal representatives of Amru Seikh were in joint possession of the properties left by Amru Seikh. As amicable possession was no longer possible, the plaintiff demanded partition, but the defendants avoided. Moreover, the wife of defendant No. 2 gave out that there has been a deed in respect of the entire property and upon search in the registry office the plaintiff came to learn that Amru Sheikh executed an alleged heba-bil-ewaj in respect of 'ka' schedule property in favour of the defendant No. 1, Afron Bibi. Afron Bibi executed a kobala in favour of defendant No. 2. It is contended that the aforesaid deeds were fraudulent and void documents. Amru Sheikh never delivered possession of 'ka' schedule property to the defendant No. 1, the said alleged heba-bil-ewaj was never acted upon and Amru Seikh possessed the suit property till his death. The plaintiff claimed 2/7th share in the 'ka' schedule property by way of inheritance.

(3.) In respect of 'kha' schedule property it was alleged by the plaintiff that, in good faith, he advanced a sum of Rs. 1,575/- (Rupees one thousand five hundred seventy five) only, in two instalments, to his elder brother, that is, defendant No. 2 and the defendant No. 2 gave him an impression that the property was purchased jointly in the names of the plaintiff and the defendant No. 2. It is contended that both the plaintiff and the defendant No. 2 were in ejmali possession of the 'kha' schedule property. On September 2, 1976, on enquiry, the plaintiff has come to learn that the defendant No. 2 fraudulently got the kobala in his name in order to deprive the plaintiff of his legitimate share. The plaintiff, therefore, claimed moiety share in respect of 'kha' schedule property.