ABDUL QUADI Vs. AKBARI BEGUM

JUDGEMENT

(1.) ONE Akbari Begum and others filed a suit against Shahzadi Bibi and others inter-alia claiming partition of the immovable properties described in schedule A, B, C and D amongst the coparceners. Facts would depict, one Sheikh Kasem deceased was the owner of four properties including 12Q, Patwar Bagan Lane, Calcutta. He had another property being premises No. 13/1/1 Patwar Bagan Lane, Calcutta. He had four wives and children from the respective wedlock. His first wife Khadiza Bibi was the benamder in respect of premises No. 12Q, Khadiza Bibi, later relinquished her right over the said property in favour of her husband Sheikh Kasem. Sheikh Kasem, by Deed of Gift bequeathed half share to Khadiza Bibi subsequently. Hence Khadiza and Kasem became the joint owner of the said property having equal share. In the partition suit plaintiffs claimed, Kasem acquired properties in the name of his wives and children as benamder. The plaintiffs also prayed for setting aside of a purported sale in respect of premises No. 13/1/1 by the defendant No. 2. Sheikh Asghar Kasem, one of the sons of Kasem, in favour of Muhammad Kasem who was claiming to be the absolute owner of the said property. It was contended that the defendant No. 2 did not have absolute ownership of the said premises and after cancellation of sale, that property should also come within the hotch potch of the joint family property liable for partition amongst the coparceners including Mohammad Kasem. The plaintiffs moved an application for interim order. The learned Judge passed the following order. "It appears from the affidavit-in-opposition of the defendant No.2 that he has already sold the business mentioned in the petition to an outsider whose name has been given in his affidavit-in-opposition. Therefore there cannot be any order relating to the said business.

(2.) THE case of the defendant No.6 is that he has purcahsed the suit premises (premises No.13/1/1, Patwar Bagan Lane, Calcutta) from Defendant No.3

(3.) MR. Das further contended that since there was no prevalent order of injunction the suit for specific performance was maintainable and the decree could not be set aside. He conteded that Shahzadi Bibi claiming to be the absolute owner of the premises agreed to sell the property to Hussamat. On her failure to conclude the sale, Hussamat filed the suit that was subsequently compromised between the parties. Such decree of compromise could not be recalled at the instance of the plaintiffs in the other suit. He contended that premises No. 12Q could not have been included within the hotch potch of the joint family property. The property admittedly belonged to Shahzadi in terms of Hiba referred to above.