DINAN ALIAS DINAMAHAMAUD KHAN Vs. SK KALIMUDDIN

JUDGEMENT

(1.) Defendants 2 to 6 are the petitioners. During the final decree proceeding opposite party No. 1 produced a deed of gift and claimed higher share in the partition which had been preliminarily decreed. The trial Court accepted the deed of gift and accordingly settled the shares of the parties. As yet, the properties in dispute have not been partitioned by metes and bounds and the final decree proceeding is pending.

(2.) MR . Kar, the learned counsel for the petitioner submitted that the acceptance of the deed of gift by the trial Court on a finding that the petitioners have not disputed the correctness of the deed of gift is not correct. In case, the plaintiff would have made endeavour to prove the deed of gift, the same would have been contested. A document when produced in Court is to be marked as exhibit in a suit, be it at the trial for the preliminary decree or even in a proceeding for final decree. There is no record to show that the document has been proved and marked as exhibit either without objection or on admission of the defendant. Mr. Kar further submitted that even assuming that the document would be valid, the plaintiff cannot get higher share on the basis of a deed of gift in view of provisions in the Muslim Personal Law on the subject. - -

(3.) IN this case, however, the document which is the basis of the order has been considered without being properly proved which amounts to exercise of jurisdiction with material irregularity. Accordingly, the impugned order is liable to be set aside. The trial Court shall give opportunity to the parties to prove the document and adduce evidence on the question and then proceed to determine the question without being effected by the findings given earlier in the impugned order which is set aside by this order.