SYED SALEEM HASHMI Vs. SYED ABDUL FATEH

JUDGEMENT

(1.) This appeal by the plaintiff arises out of a suit for partition of the properties of one Syed Md. Kalim who died on 21st of June, 1958 and owed allegiance to Hanag School of Sunni Muslim Law. He left behind five sons and one daughter. He was married twice. Plaintiff is one of his sons from the first wife. Defendants Nos. 1 to 4 are his sons and defendant No. 5 is his daughter from his second wife, Mosst. Zumran. Three schedules were appended to the plaint. According to the plaintiffs case, schedule A described exclusive immovable properties of Syed Md. Kalim. Schedule B described his exclusive movable properties and schedule G described other immovable properties in which Syed Md. Kalim had 3 annas 11 dams 2 kauris and odd share; defendants 6 to 16 being his co-sharers. The suit had to be instituted as the defendants were not willing to have the properties amicably partitioned in spite of demand of the plaintiff. Plaintiff claimed 2 annas 18 dams and odd share in the properties of his father.

(2.) There are six items of properties in schedule A to the plaint. Item Nos. 1 and 2 are two buildings together with land in mohalla Sabjibagh in Patna. Item No. 3 is a house at Yahyapur, police station Maner in the district of Patna. Item Nos. 4 and 5 are kasht raiyati lands in the same village and Item No. 6 is kasht raiyati land in village Ghyaspur.

(3.) Three written statements were filed, one by defendant No. 4, another by defendant No. 5 and the third by defendants Nos. 2 and 3. With regard to Item No. 1 of schedule A, the case of defendants 4 and 5 is that Syed Md. Kalim made an oral gift of that property to them; two-third share to defendant No. 4 and one-third to defendant No. 5. Defendants 2 and 3 did not make out any specific case in respect of this property. So far Item No. 2 of schedule A is concerned, the case of defendant No. 4 is that it was not a property of Syed Md. Kalim, but of Bibi Zumran, mother of defendants 1 to 5, and on her death Syed Md. Kalim got only a share in it and that he made an oral gift of his share in that property to defendant No. 5. The case or defendant No. 5 in respect of this property is that Bibi Zumran in her life time made an oral gift of this property to her and the plaintiff or defendants 1 to 4 had no share in it. Defendants 2 and 3 aver that after the death of Bibi Zumran, defendants 1 to 5 and Syed Md. Kalim came in possession of the property according to their share: Syed Md. Kalim getting one-fourth share. The case of defendant No. 4 in respect of Items 3 to 6 of schedule A property is that Item No. 3 was exclusive property of Bibi Zumran and other items were acquisition either of Bibi Zumran or this defendant. Defendant No. 5 pleads that the aforesaid four items of schedule A properties were inherited by the plaintiff and defendants Nos. 1 to 5 in proportion to their respective legal shares over which they are in joint possession. Similar is the case of defendants 2 and 3 in respect of these four items of properties. Defendants 2 to 5 all have denied that Syed Md. Kalim left any movable property as described in schedule B to the plaint. They have also raised various pleas, such as nonjoinder of necessary parties, non-inclusion of all the properties, want of proper valuation and details of properties described in schedule C to defeat the claim of the plaintiff in respect thereof.