MOST BIBI MASOODA KHATOON Vs. MOINUDDIN

JUDGEMENT

(1.) THE plaintiff have filed the First Appeal against a part of the Judgment and Decree dated 29.07.1978 passed by the learned Second Subordinate Judge, Patna in title suit No.16 of 1974.

(2.) THE plaintiffs filed the aforesaid title suit No.16 of 1974 claiming partition of the suit property to the extent of 6 ana share therein. The plaintiff 's case in short is that Mostt. Ahmadi was the owner of the suit property. She died leaving behind her husband Sheikh Jan Bux, one son Khairat Hussain, two daughters, namely, Bibi Masaddi and Bibi Fashihan. Her heirs came in possession of the property after her death to the extent of their share. Jan Bux had 4 ana share. Khairat Hussain had 6 ana share and Bibi Masaddi and Fashihan each have 3 ana share in the property of Bibi Ahmadi according to Sunni School of Mohammad Law. The son of Ahmadi namely, Khairat Hussain had two wives. He had one son Jamal Hussain from his first wife and two sons namely, Aminuddin and Nihar Hussain from second wife. The two sons pre -deceased their father leaving behind their sons from second wife Moinuddin and Md. Firoz respectively who are defendant No.1 and 2. The son through first wife, namely, Jamal Hussain died leaving behind his widow Amina Khatoon and two daughters Masuda Khatoon and Jakila Khatoon who all are plaintiff No.1 and 3. Jan Bux was in possession of the property along with his 4 ana share. Jan Bux executed a registered sale deed on 5.8.1907 with respect to his 4 ana share in favour of Jamal Hussain, the son from first wife of Khairat Hussain. Khairat Hussain during his life time executed a registered deed of gift dated 21.07.1948 in respect of his 6 ana share in favour of Jamal Hussain, Moinuddin, and Firoz each 2 ana share who jointly came in possession. Then, Jamal Hussain executed registered sale deed on 07.11.1960 with respect to 62 decimal of land out of his 6 ana share in favour of his wife Aamna Khatoon who is plaintiff No.3. He again sold 16 decimal of land in favour of defendant No.6 and then for remaining property out of 6 ana he executed a deed of gift dated 18.01.1971 with respect to the lands mentioned in sale deed dated 5.8.1907 in favour of his two daughters. After death of Jamal, plaintiffs are coming in possession of the property. The heirs of Bibi Masiddi and Fashihan / purchasers from the heirs are defendant No.3 to 6 who are coming in possession of the 3 ana share of Masiddi and 3 ana share of Fashihan.

(3.) THE defendant No.1 and 2 filed separate contesting written statement alleging that there had already been partition by metes and bounds in the year 1945. Bibi Ahmadi had taken loan from her son Khairat Hussain and Khairat Hussain got the sale deed dated 5.8.1907 from Jan Bux in the name of his minor son Jamal Hussain, as such Jamal Hussain the father of plaintiff No.1 and 2 and husband of plaintiff No.3 never acquired right title or interest with respect to 4 ana share of Jan Bux by virtue of the aforesaid sale deed dated 05.08.1907 nor they ever came in possession thereof. Khairat Hussain had right title and interest in respect of the said 4 ana share as he was in cultivating possession as such Khairat Hussain had got 10 ana share. He executed the registered gift deed on 21.07.1948 in favour of Jamal Hussain and defendant No.1 and 2 with respect to 10 ana share to the extent of 1/3rd to the 3 beneficiaries. After death of Jan Bux, there was partition and in that partition Khairat Hussain got 11 bigha 7 katha out of total 17 bigha 7 katha. The defendants have got 6 ana 8 pie out of 10 ana share because of deed of gift and 9 pie by inheritance from Jamal Hussain who died leaving behind no son. As such, the share of defendant No.1 and 2 will not be less than 7. ana 6 pie and the plaintiff have share to the extent of 2 ana 7 pie. There is no unity of title.