HOSSAIN BIBI Vs. ENAYATULLA KHAN

JUDGEMENT

(1.) This appeal at the instance of the Defendant -Appellant arose out of a suit by the Plaintiff for partition. The Plaintiff and the Defendant No. 1, since deceased, were two brothers and the Defendant No. 1 was the elder brother of the Plaintiff. It is alleged that they used to carry on business in dry fruits jointly and used to mess together and formed a joint family and had a joint common fund, ejmali, which was to be kept with the Defendant No. 1 being the eldest of the brothers. On December 16, 1927, with the above joint fund, the property at 25 Ekbalpore Lane was purchased by both the two brothers in the name of the elder brother, the Defendant No. 1, as the Plaintiff had ample confidence and faith in him. It is stated that) thereafter on the joint effort and with the income of the ejmali business, construction was effected on the said premises and it became thus the joint property of the two brothers, the Plaintiff and the Defendant No. 1 and this property mentioned in Schedule 'A' formed one of the subjects of the present suit and was liable to be partitioned. It is further stated that the Plaintiff feeling inconvenience in the joint mess and joint dwelling accommodation in the above premises removed to a separate house and had been getting a share of the income from the Defendant No. 1, out of the income of the property in Schedule 'A', but the major portion of the income of the suit property by common consent was kept with Defendant No. 1 for acquisition of other properties and with the said income, the properties mentioned in Schedule 'B' were subsequently acquired gradually from the said accumulation but in the name of the Defendant No. 1. The Defendant No. 1 since deceased, stopped paying any money out of the income of the suit properties and being pressed for that expressed that he had been forced to make some benami documents in favour of his wife and daughter and that they were claiming the properties on the basis thereof, for which he was not in a position to give the Plaintiff his due share of the usufructs. The Plaintiff was very much surprised at the above statement of the elder brother and made searches from the registry office and other quarters and came to learn that out of fraudulent motive, he had created certain deeds in favour of his wife and daughter and daughter's son and daughter regarding the suit properties. It is alleged that the aforesaid deeds are all benami, fraudulent and collusive and sham and paper transactions and without consideration and the right, title and interest that the Plaintiff has got in all those properties are not at all affected and those are by no means binding upon the Plaintiff. It is alleged that the Plaintiff has got an indefeasible right in the suit properties to the extent of 8 annas share and he is entitled to get a decree for partition by metes and bounds even if the Court finds that the transactions are valid. During the pendency of the suit the Defendant No. 1 Ahmed Shah Khan died. It is alleged that the Plaintiff, being his brother, is entitled to 3/16th share of the property by way of inheritance, the Defendant No. 2 has got 1/4th share and the Defendant No. 5 has got 1/16th share in the suit properties. The Plaintiff thus has 11/16th share in the same. It further appears that the Plaintiff Ahmed Shah Khan has executed and registered a kobala purporting to transfer the property in favour of his wife, Hossaini Bibi. It is alleged that the said document is collusive and sham paper transaction. Further, the said property having been acquired out of the income of ejmali property, the Plaintiff has got 8 annas interest therein and thus the deceased Defendant Ahmed Shah Khan having died leaving the Plaintiff as one of his heirs and in the suit property the Plaintiff has 11/16th share. It is alleged that the cause of action arose on and from June 15, 1958, kobala relating to 16B Ibrahim Road was however invalid and when the Defendant No. 1 refused to pay any income of the properties or to effect partition. From these pleadings the Plaintiff prayed for a decree for partition in the preliminary form against the Defendant regarding 11/16th share in the suit property and for a declaration that the deeds and transaction mentioned in Schedule 'C' are not at all binding upon the Plaintiff and are all benami, fraudulent, sham paper transaction and that a final decree be passed in favour of the Plaintiff and in terms of the final report and that such other relief or reliefs be granted to which the Plaintiff is entitled under law and enquiry. The suit was filed on September 29, 1959 and the Defendant No. 1 died on May 1, 1960.

(2.) The Defendants Nos. 2 and 4 filed written statements on March 21, 1960. In the written statement filed by the Defendant No. 2 Shahzadi Begum it was stated as follows:

(3.) The Defendants Nos. 3 and 4, the minor sons of Sahazadi Begum, the Defendant No. 2, also filed written statements stating, inter alia, that there was no joint business in dry fruits, never messed together and never formed joint family. The property at premises No. 25 Ekbalpore Lane was never purchased from the joint fund. The premises No. 16 Ibrahim Road was purchased by the Defendant No. 1 with his own money in auction sale held by the Corporation of Calcutta on August 22, 1944.