MOHAMMAD SHAFIUDDIN Vs. BIBI NAJMA

JUDGEMENT

(1.) Mohammad Shafiuddm and Mohammad Faisal, hereinafter referred to as appellants 1 and 2 respectively, have preferred an appeal in this Court against the judgment and decree passed in Title suit No. 92/2 of 1959/63. The said suit was instituted by respondents 1 to 4 on the 12th November, 1959, impleading the Rank of Bihar Ltd., Patna (respondent No. 5) as the sole defendant. Subsequently, the two appellants intervened and they became intervenor defendants by the order of the trial court. The said suit was for declaration that the plaintiffs (respondents 1 to 4) were entitled to the contents of the locker No. 146 of the Bank of Bihar Ltd. (respondent No. 5) and that they were entitled to operate the same. Bibi Najma (Respondent No. 1) is the widow of Md. Yahya, resident of village Sakrawan, police station Asthawan, district Patna, whereas respondents to 4 are her minor sons through Md. Yahya. The appellants, who were added as intervenor defendants alleged that they were also the sons of Md. Yahya from his earlier wife namely, Zainab who was the first wife of Md. Yahya and, they, according to them, are also entitled to the share in the contents of the locker. Subsequently, the plaintiffs got their plaint amended denying the allegation of the intervenor defendants and the plaintiffs alleged that Zainab was not the wife of Md. Yahya, rather she was married with one Quadir of Biharasharif. Therefore, according to the plaintiffs, the intervenor defendants are sons of Quadir through Zainab. According to them, Quadir is now dead. The plaintiffs' further case was that the first marriage of Md. Yahya was with Hasiba, the daughter of late Khan Bahadur Maulvi Md. Sayeed (hereinafter referred to as Khan Bahadur) an advocate of Monghyr. Hasiba died issueless in March or April, 1931. Thereafter, according to the plaintiffs, the second marriage of Md. Yahya took place with respondent No. 1 in 1947, and from the second marriage respondents 2 to 4 were born. On behalf of the plaintiffs, it was asserted that Zainab was working as maid-servant of Bibi Asiran, the mother of Md. Yahya. The intervenor defendants filed their written statement on the 12th February, 1960, and, an additional written statement was filed on their behalf on the 22nd July, 1963. We have already indicated their stand and the allegation made in the suit The further case of the intervenor defendants was that plaintiff No. 1. their step-mother, purposely filed the present suit in order to defraud and deprive these defendants from their legal shares. According to them, they were in service outside Patna, and plaintiff No. 1 (respondent No. 1) was living with Md. Yahya, and, therefore, she on Md. Yahya's death got hold of the bunch of the keys including the key of the looker and other movable properties. According to them, plaintiff No. 1 has only -/2.00 share in the property of Md. Yahya including in the locker in question, while the intervenor defendants and plaintiffs 2 to 4 have each -/2/16 dams (two annas and sixteen dams) share, and, thus the defendants are co-sharers to the extent of 5 annas 12 dams in the contents of the locker and all in other properties.

(2.) The admitted case of the parties was that Md. Yahya died on the 21st October, 1959, Md. Yahya had deposited important documents relating to annuity certificates, share certificates and other valuables is looker No. 146 of respondent No. 5 ; but the details of the contents of the locker were not known. Plaintiff No. 1 was advised to obtain a succession certificate and for her appointment as guardian of her minor sons. In order to ascertain the particulars of the assets left by Md. Yahya, she was also to find out the contents of the locker No. 146 for the purpose of an application for succession certificate, for which she had written to respondent no, 5. Respondent No. 5 wrote a letter on the 24th October, 1959 calling upon her to seek a declaration of her title to the said looker which had necessitated the filing of the said title suit.

(3.) On the pleadings of the parties, the trial court framed the following issues: