MORIUM BIBI Vs. SHOWKATARA BEGUM

JUDGEMENT

(1.) This appeal is from the judgment and order passed by the learned Single Judge of this Court on 24th Feb., 1992 dismissing the appellants' application for an order that the suit filed by Musst. Showkatara Begum & Ors. against the appellants being suit No. 724 of 1991 filed in this Court is hit by the provisions in Order 23 Rule 3A of the code of Civil procedure and be dismissed. The said suit is for a declaration that the decree dated 14th Feb., 1991 passed pursuant to the terms of the settlement in Appeal No. 205 of 1986 as also the Suit No. 1368 of 1969 filed by Khairunnessa Begum & Ors. against the defendants including Md. Yasin the predecessor-in-interest of the respondent Showkatara Begum & Ors. are void, illegal and not binding upon the plaintiffs. One Haji Md. Rafique, a muslim governed by the Sunni Hanafi School was the owner of plot of land measuring about 5 Cottahs 6 Chittacks being No.6, Madan St., Calcutta and he had a cotton thread business under the name and style of Haji Mohammed Rafique at 10, Chandney Approach, Calcutta. The said Haji Md. Rafique died intestate leaving behind him his widow Walliunnessa Begum, and two sons Abdul Karim and Abdul Rashid and a brother Md. Yasin and the said Abdul Rashid died in 1962 leaving behind his widow Zaibunnessa Begum and Abdul Karim died in 1968 leaving behind his widow Khairunnessa Begum as would appear from the following genealogical table.

(2.) Sometime in September, 1968 the said Abdul Karim executed a Deed of Wakf in respect of the premises No. 6, Madan St. Calcutta, wherein the said Khairunnessa Begum and Zaibunnessa Begum were confirming parties. One Mustaque Ahmed, since deceased, father of the appellants and one Hasim Abdul Halim were appointed Joint Mutwalis under the said Deed of Wakf. Sometime in 1969 the said Khairunnessa Begum, Zaibunessa Begum and Walliunessa Begum instituted a suit being Suit No. 1303 of 1969 against Mustaq Ahmed & Ors. praying inter alia, for a declaration that the said alleged deed of wakf dated 17th Sept., 1968 in respect of the premises No. 6, Madan St. Calcutta is void, illegal and not binding upon the plaintiffs and also a declaration that the plaintiffs and the said Md. Yasin the Predecessors-in-interest of the plaintiffs are owners of the premises of the said 6, Madan St. Calcutta and other reliefs. The said Md. Yasin, the brother of said Haji Md. Radique was the defendant No.. 3 in the said suit. It is claimed in the said suit that Md. Yasin had an undivided 147/256th share in the said premises No. 6, Madan St. Calcutta. The said Md. Yasin died on 7th June, 1972 leaving behind the respondents Showkat Ara Begum & Ors. the plaintiffs in the present suit being Suit No. 724 of 1991.

(3.) The appellant Morium Bibi is the widow of Mustaq Ahmed, the defendant No. 1 in the suit being Suit No. 1368 of 1969. The said suit was decreed ex-parte on 30th Jan., 1986. Thereafter, the appellants being the heirs, heiress of the original defendant took out an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the said ex-parte' decree. The said application was also dismissed. The appellants thereafter preferred an appeal from both the order and the decrees. During the pendency of the said appeal, a Terms of Settlement was filed by the contesting parties. According to the appellants, all along in the trial court as also in the appeal court the plaintiff in the suit and also the appellants were contesting the suit as also the appeal. It is also the case of the appellants that the defendant No. 3 the said Md. Yasin the Predecessor-in-interest of the plaintiffs in the present suit, the respondents in this appeal never contested the said appeal nor the suit in the trial court. By the said Terms of Settlement put in the appeal court, the property being premises No. 6, Madan St. Calcutta was allotted in two lots, one in favour of the wakf property and the other in favour of the secular property. The allegations in counter-allegations were withdrawn. The appeal Court passed a decree in accordance with the said Terms of Settlement setting aside the ex-parte decree passed by the trial court. The appeal was accordingly disposed of on 14th Feb., 1991.