JAMILA KHATOON Vs. RAZI AHMAD

JUDGEMENT

(1.) THE original sole plaintiff, Bibi Asma Khatoon who died during the pendency of this appeal and has been substituted, had filed this First Appeal against the judgment and decree dated 18.08.1975 passed by the learned Subordinate Judge, Darbhanga in Partition Suit No.181 of 1967 whereby the trial court decreed the plaintiff's suit for partition in part.

(2.) THE plaintiffs-appellants had filed the suit claiming partition of 1/8th share in the suit property left by her father, Haji Shafiullah described in Schedule II to VI. According to the plaintiffs, her father, Haji Shafiullah died in June, 1966 leaving behind four sons namely Wasi Ahmad, defendant no.1, Ali Ahmad, defendant no.2, Sayeed Ahmad, defendant no.3 and late Nazir Ahmad, widow Bibi Fatma and two daughters namely Asma Khatoon, the plaintiff and Bismillah Khatoon, the defendant no.4. Nazir Ahmad one of the sons of Haji Shafiullah predeceased him leaving behind his two sons and 3 daughters who are defendant nos.6 to 10. The widow, Bibi Fatma died during the pendency of the suit, therefore, her name was struck off. According to the plaintiffs, 3 registered gift deeds were executed by Haji Shafiullah on 29.09.1962 and two registered gift deeds on 04.05.1962 in favour of his four sons. The properties covered by these gift deeds have been mentioned in detail in Schedule IV of the plaint. The defendant nos.2, 3 and the predeceased son, Nazir Ahmad in collusion with the scribe and attesting witnesses got created these registered gift deeds as such, the gift deeds are forged, fabricated and not executed by Haji Shafiullah. Haji Shafiullah was old and almost lost his mental capacity who was being looked after by the defendants. Haji Shafiullah died at the age of 95 years. He was under undue influence of defendant nos.2, 3 and Nazir Ahmad and there was fiduciary relationship between them. The further case of the plaintiffs is that if the court will find that the deeds are executed by Shafiullah then the said gift deeds were executed under the influence of defendant nos.2, 3 and Nazir Ahmad while Haji Shafiullah has lost his balance of mind and was under the guardianship of aforesaid persons. Without knowing the contents of the deeds, he has signed and registered the same. The said sons had taken undue advantage of old age of Shafiullah.

(3.) THE defendant no.1 filed supporting written statement. However, the defendant nos.2 and 3 filed contesting written statement. Their main defence is that the plaintiff has got no cause of action and the suit is barred by law of limitation. Haji Shafiullah donated the properties to his sons. All the donees came in possession of the property donated to them. The defendant no.1, Wasi Ahmad did not take possession of the donated properties. Therefore, Haji Shafiullah had issued a notice to him but in spite of that, he did not take possession. Therefore, Haji Shafiullah continued in possession till his death. After death of Haji Shafiullah, his wife and the widow of Nazir Ahmad got share by way of inheritance and they have already gifted their properties orally in favour of the sons of Nazir Ahmad and delivered possession to them. The Schedule V property was acquired by Haji Shafiullah in the name of defendant no.1 as such, it is available for partition. In fact, defendant no.1 got the present suit filed by the plaintiffs. Haji Shafiullah was physically fit and mentally sound till his death and he died at the age of 76 years. He was never under the influence of the defendants and Nazir Ahmad. The gift deeds are neither collusive nor the same were brought into existence by these defendants. In fact, Haji Shafiullah himself gifted his properties after reading and knowing the contents of the gift deeds. He admitted the execution of the deed before Registrar. The gift deeds were acted upon as such, the same are valid and legal. Although, he was old but he was healthy. No fraud was committed. The Schedule VI property was acquired by Haji Shafiullah in the names of his four sons. Therefore, the properties covered by the gift deeds be excluded from partition.