SABIBAN WIFE OF LATE DILDAR MIYAN Vs. JAHARUDDIN

JUDGEMENT

(1.) Heard Mr. Raghib Ahsan, learned senior counsel for appellants.

(2.) The plaintiffs are the appellants in this appeal against the judgment and decree of affirmance dismissing the suit for partition.

(3.) The parties to the suit belong to a family governed by Mahomedan Law. The genealogy has been given in the judgment of the appellate court below which has not been disputed by the appellants, and from which it appears that admittedly the parties to the suit are descendants of Bhinik Miyan who died leaving behind four sons namely Asa Miyan, Dasa Miyan, Gudar Miyan and Fatingan Miyan. The plaintiff 1st set are the descendants of Fatingan Miyan and have claimed half share in the suit property. The plaintiff 2nd set are the descendants of Gudar Miyan and have claimed 1/4th share in the suit property. It is the case of the plaintiffs that Asa Miyan made oral gift of his share in favour of Fatingan Miyan as Asa Miyan was issueless and similarly the son of Dasa Miyan namely Hukum Miyan orally gifted his share in favour of son-in-law Rajbali Miyan. The shares in the property by the two sets of the plaintiffs have accordingly been claimed on the basis of the aforesaid main averment. The defendants contested the claim of the plaintiffs inter alia on the specific ground that there had been partition by metes and bounds between the descendants of Bhinik Miyan with regard to the entire property much before survey operation and the parties came in possession of their respective allotted shares. It was also the case of the defendants that Jhagaru Miyan son of Asa Miyan orally gifted his share in favour of Hukum Miyan and the case of oral gift by Asa Miyan as pleaded by the plaintiffs was denied.