SK ZAFIR Vs. SK AMIRUDDIN

JUDGEMENT

(1.) This appeal by the plff. arises out of a suit for partition of 225/1018 share in the properties described in Schedules 1 and 2 of the plaint. He further asked for a declaration that the deed of partition dated 19-4-1917 was null, void and ineffective. Plaintiff wanted a decree for rendition of account against defendant 1 from the date of the death of Sheikh Reazat Hussain till the date of the suit. It appears that Asghar AH was the father of Sheikh Reazat Hussain and the latter married twice. Reazat Hussain had, from his first wife Tabizun-nissa, five sons, viz., Habibul Haque, Amiruddin (defendant 1), Sheikh Gulsan, Sheikh Shakoor, and Sheikh Md. Isa, and one daughter Wahidun-nissa, married to Sheikh Sadaruddin (defendant 5). The first wife had died during the life time of her husband and, out of the five sons, four sons as well, died during the life time of their father. Mosammat BUM Makirunnissa (defdt 6) is the wife of defdt. 1 and Abdul Rahman, Abdul Aziz, Abdul Rauf, Md. Fazlul Rahman and Abdul Bari (defendants 7 to 11) are the sons of defendant 1. Bibi Sabudan was the second wife of Reazat Hussain and, through her, Reazat Hussain had four sons, viz., Md. Yahia (defendant 2), Md. Ismail (Defendant 3), Abdullah and Abdul Gaffar, besides a daughter Rehun-nissa alias Ruhela (defendant 4). Abdullah died issueless without marriage after the death of his father. Plaintiff is the son of Abdul Gaffar. Defendants 1 to 5 have been described as defdts Ist party, whereas defendants 6 to 11 have been mentioned as defendants 2nd party. Abdul Gaffar, father of the plaintiff, died at the age of 17 years only in the month of December, 1933 leaving behind the plff., who was then aged about a month only. Sheikh Reazat Hussain died leaving behind, his second wife Bibi Sabudan, his son (Defendant 1) and his daughter Bibi Wahidunnissa from his first wife, besides defdts. 2, 3, 4, Abdullah and plaintiff's father from his second wife. Later on, Sabudan also died leaving behind her sons and daughter. Sheikh Reazat Hussain had ancestral properties and he acquired some properties in the name of defendant 1, and others in the name of defendant 6. Reazat Hussain left considerable cash in the custody of defendant 1 and all the properties left by him were joint. The ancestral properties and the properties acquired by Reazat Hussain were specified in Schedule 1 of the plaint, whereas those acquired by defendant 1 on behalf of all either in his name or in the names of his sons and wife, were mentioned in Schedule 2. At the time of the death of Reazat Hussain, all his sons and daughter from his second wife were minors and his widow Bibi Sabudan was an illiterate purdanashin lady and hence, defendant 1 became manager of all the properties. Defendant 1 fraudulently got a deed of agreement (ekrarnama) by way of partition executed on 19-4-1917, taking advantage of the helplessness of the widow and minor sons. Md. Yahis and Bibi Rahunrusa (defendants 2 and 4) were wrongly described as majors in that deed and Bibi Sabudan was made to represent the two minors, Md. Ismail and Abdul Gaffar, the father of the plff., in that partition. Only some of the ancestral properties were mentioned in that deed and Bibi Sabudan, the grand-mother of the plaintiff, had no right to execute that deed as guardian of her minor sons. No regard was paid to the shares of the sons and daughter of Reazat Hussain from his second wife and the said deed of partition could not bind either the plaintiff's father or the plaintiff. Another fraud was committed in mentioning that all the nanihali (mother's side) properties belonged to defendant 1. The plaintiff further mentioned in paragraph 9 of the plaint, that portions of properties were, however, in possession and occupation of the particular parties but without any knowledge of the said deed of partition. The plaintiff learnt on 6-9-1954 about the fraudulent and collusive deed of partition and, later on, he made a demand for partition and rendition of account, but defendant 1 did not pay any heed to it. On these allegations, he instituted this suit on 24-9-1954.

(2.) Defendants I and 6 to ll filed a joint written statement. Their case was, that the suit was parred by limitation and it was instituted at the instance of detendant 2. According to them, me properties described in Schedule 1 or the plaint were not the properties left behind by Sheikh Reazat Hussain and, in fact, out of the properties described in Schedule 1 of the plaint, the properties which were mentioned in Schedule 1 of the written statement were the only properties which were left by Sheikh Reazat Hussain. The properties described in Schedule 2 of the written statement belonged to Sheikh Asghar Ali, grandfather of defendant 1, but, before the survey operations, Asghar Ali had made an oral gift thereof in favour of defendant 1 and his full brother Sheikh Habidul Haque. The two donees got their names recorded in the record-of-rights. Asghar Ali made another oral gift to defendant 1 in respect of the properties mentioned in Schedule 3 of the written statement. Defendant 1 acquired certain properties and they were described in schedule 4 of the written Statement. Lands mentioned in Schedule 5 of the written statement were the nanihali properties of defendant 1 and he was in exclusive possession thereof, other heirs having no concern with them. Those mentioned in Schedule 6 of the written statement were the personal properties of defendant 1 and defendant 6 was the owner of the properties mentioned in Schedule 7 of the written statement as her personal properties. Defendant 1 made an oral gift of the properties described in Schedule 8 of the written statement to defendant 6 long after the deed of partition and she was in possession thereof. She had sold proprietary interest in two villages and the remaining properties were in her possession. According to them, Abdullah had died during the lifetime of his father. Abdul Gaffar (plaintiff's father) was born in 1901 and he died in 1933 at the ago of 32 years. Reazat Hussain died in 1913 and the plaintiff was born in May, 1928, Plaintiff attained majority long before November, 1951 and he had executed certain documents as major. Reazat Hussain did not acquire any property, either in the name of defendant 1 or that of defendant 6 and, in fact, the properties belonged to Sheikh Asghar Ali, the grand-father, and he had made an oral gift to defendant 1 and his brother on the basis of which their names were entered in the record-of-rights. There was no fraud and deception at the time of the execution of the deed of partition dated 19-4-1917 and, in fact, the partition was fair and equitable. Bibi Sabudan was a very intelligent lady and, having understood the pros and cons of the transaction, she executed that deed on behalf of her minor sons. Parties came in possession of various blocks of land on the basis of that deed and it was operative and binding on the plaintiff. Plaintiff's father had remained in possession of the lands allotted to him and plaintiff had mortgaged and sold certain properties which were allotted to his branch by that deed. Defendant 1 was never the manager and the properties in suit were not at all joint. Defendants 7 to 11 were carrying on some business relating to purchase and sale of tobacco out of their own funds and the plaintiff had no concern with that business. About the properties which came from the mother's side, their case was, that the maternal grand-father of defendant 1 was the owner thereof. He made a gift of the same to the mother of defendant 1 by a registered deed dated 17-8-1889. After the death of the mother, Mostt, Bibi Sajirunnissa, maternal grand-mother of defendant 1, got those properties and she made a gift of the proprietary interest to defendant 1 by another deed of gift dated 1-12-1903. Their alternative plea was, that, even if the plaintiff and defendants 2 to 4 had any title to the properties described in Schedule 1 of the plaint, that was lost and extinguished on account of adverse possession of defendants 1 and 6 for a period of more than 12 years. Defendant 3 also filed a written statement, but he supported the plaintiff's case and he also claimed a share to the extent of 225/1018.

(3.) Besides the issue of limitation and adverse possession, the other main issues in the suit were, as to whether the taksimnama dated 19-4-1917 was genuine and binding on the plaintiff, and, whether the properties in dispute were jointly owned and possessed by him along with the defendants, according to the shares claimed by him.