MONAKA KUER Vs. MONAKA KUER (SUBSTITUTED IN

JUDGEMENT

(1.) This application in revision has been filed against an order dated 3.9.1977 passed by Sri Md. Yunus Ansari, Sub-Judge, Jehanabad in partition suit No. 14/19/1974 by which the learned Sub-Judge has held that the suit being hit by Section 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as 'the Code') has abated. Sri Angad Ojha, while challenging the validity of the impugned order has drawn my attention to the geneology which has been given in the suit itself. It has been pointed out that Dalsingar Singh had two sons Maina Singh and Bahrain Singh. Baliram Singh died in 1968 leaving behind his widow Nirwano Kuer, who is defendant No. 1 in the suit. The plaintiff, according to him has got 8 annas share in the suit and the remaining 8 annas interest belongs to Nirwano Kuer. She executed a Deed of Gift in favour of his brother Sachit Roy, who is defendant No. 2, in the year 1972 and Sachita Roy sold away some of the properties to defendants 5 to 6 so gifted to him by her sister Nirwano Kuer (defendant No. 1). On the aforesaid basis Mr. Angad Ojha has submitted that in the suit the main issue involved is with regard to the declaration whether the Deed of Gift is a void or voidable document. It has been submitted that in case it is found that the Deed of Gift is voidable document, then the suit would not be hit by Section 4(c) of the Act and cannot abate. If it is found that the Deed of Gift is a void document, the suit would certainly abate. It has been contended that the learned Subordinate Judge has not examined this issue and has committed grave error in holding that the suit has abated under Section 4(c) of the Act.

(2.) I have given my due consideration on the points raised and on reading the impugned order, referred to above, I find that it is a pure and simple suit for partition on the facts as admitted, it is a suit for partition of the properties, in which it can well be said that certain defendants, as stated above, are purchasers of the rights, which clearly indicate that the suit is for declaration of right and interest of the parties in the suit properties and as such, in my opinion, the same fells within the mischief of Section 4(c) of the Act and has been rightly held by the Court below that the suit has abated. It may be relevant to mention here that the new point, which has been raised by Mr. Angad Ojha has not been pleaded in the memo of the revision application and therefore, is not tenable at this stage. I do not find any infirmity in the impugned order and as such it does not warrant any interference".

(3.) In the result, this application is dismissed. But there will be no order as to costs.