SK KARAN @ KARAM MOHAMMAD Vs. SK NUR

JUDGEMENT

(1.) The legal heirs of defendant no.1 are the appellants against an affirming judgment.

(2.) Hamida Bibi, the predecessor-in-interest of respondents 1 and 2 as plaintiffs instituted the suit for partition. Plaintiff's case in nutshell is that Danis Mohammed was the common ancestor of the parties. The suit property was recorded in his name. He died on 14.10.1947 leaving behind his widow Surma Bibi and five daughters, namely, Hamida, plaintiff, Rasida, defendant no.1, Hanifa, defendant no.2, Daulat Bibi and Jalikha Bibi. Defendant no.3 is the only son of Daulat Bibi. Jalikha died issueless. After death of Danis Mohammed, the plaintiff and defendants 1 to 3 succeeded to the property. The plaintiff has 1/5th share. After death of Jalikha, her share devolved on her survivors and, as such the plaintiff has 4/15th share. The defendants 1 and 2 have 4/15th share each, whereas defendant no.3 has 1/5th share. But then, her name was not recorded in the M.S.R.O.R.. She filed a Mutation Case No. 928 of 1989 before the Tahasildar, Bhadrak. The appeal was allowed. Against the said order, defendants 1 to 3 filed appeal. The same was allowed. In the appeal memo, it was disclosed that on 13.10.1947, vide Ext.A, Danis Mohammed had gifted the suit property to his wife Surma Bibi. It was further disclosed that Surma Bibi had executed a registered gift deed on 31.10.1947 in favour of Rasida, Jalikha and Daulat Bibi. Danis was in the death bed on 13.10.1947. He died on the next day i.e., on 14.10.1947 and, as such it was not possible on his part to execute the gift deed. After obtaining a certified copy of the gift deed, she came to know that the gift deed was registered on 17.10.1947, vide Ext.B. Danis Mohammed was unconscious on 13.10.1947. He had not executed the gift deed. The deed had not been acted upon. Surma Bibi did not acquire any interest over the suit land. As per the prevalent practice in Muslim community, obsequies (Fatiha) are observed for forty days. Surma Bibi was a pardanashin woman. She did not know how to read and write. Both the deeds are void. Defendant no.4 is a stranger to the family.

(3.) Defendants 1 to 3 in their written statement resisted the suit on the ground that Danis Mohammed had executed a gift deed in favour of his wife Surma Bibi on 13.10.1947. The deed was registered on 17.10.1947. All the daughters of Danis Mohammed including the plaintiff admitted the execution of gift deed. Thereafter, Surma Bibi executed a gift deed on 31.10.1947 in favour of Daulat, Jalikha and Rasida. They are the owners of the suit property. The suit property was recorded in their names.