ABDUL MATIN Vs. ABDUL AZIZ

JUDGEMENT

(1.) This second appeal is directed against the judgment and decree passed by the learned Additional District Judge, Kamrup in Title Appeal No. 13 of 1978 dismissing the appeal and affirming the judgment and decree passed by the Assistant District Judge No. 2, Gauhati dismissing the suit with costs.

(2.) The facts of the case may be briefly stated as follows. One Abdul Gafur owned 4 kathas of land. After his death, the land was amicably partitioned by his heirs in or about the year 1937. On partition, his two daughters namely, Salimon Nessa and Halimon Nessa got 1K-3Ls of land. Halimon Nessa sold away her half share in the said land to her sister Salimon Nessa by registered sale deed on 24-1-40. Salimon Nessa thus became absolute owner of 1 K-3Ls of land on and after the said sale on 24-1-40. Halimon Nessa died sometime in 1951 leaving behind her son, the plaintiff Abdul Matin as her sole heir. Later in 1953, Salimon Nessa also died without any issue leaving behind her husband Kitab Ali, and her sister's son Abdul Matin, the defendant No. 6. Kitab Ali, thereafter by a deed of gift dated 25-11-54, gifted the entire land belonging to his wife to one Abdul Latif, who later sold the same to the defendant No. 5. The defendant No. 5 thus, claimed title of the said land by virtue of purchase from Abdul Latif.

(3.) The plaintiff filed a suit for declaration of his title in respect of 17 lechas of land and for partition of the suit land. His claim was based on Mahomedan Law of Succession. The defendant No. 5, the purchaser of the land contested the suit mainly on two grounds namely, (i) under the facts and circumstances of the case, the plaintiff did not succeed to any part of the land belonging to Salimon Nessa who died in 1953 in view of the Mahomedan Law of Succession and (ii) the entire property on her death devolved on her husband Kitab Ali who gifted the same to the vendor of the defendant No. 5. As such the suit was not maintainable.