RUKAIYA BEGUM Vs. FAZALUR REHMAN

JUDGEMENT

(1.) The Defendants- Appellants have filed this appeal under Clause 10 of the Letters Patent of the Patna High Court Rules, challenging the judgment and order passed by the learned Single Judge of this Court in F.A. No. 130 of 1982 (R) whereby and whereunder the learned Single Judge reversed the judgment and decree passed by the trial Court and decreed the suit for partition in respect of part of the properties.

(2.) The Plaintiffs-Respondents filed P.S. No. 8 of 1976 claiming half share in the suit properties left by Late Muslim Khan. The said suit was dismissed by the learned 2nd Additional Subordinate Judge, Giridih, in terms of the judgment and decree dated 23-5-1980.

(3.) The brief facts of the case are as follows: The plaintiffs-respondents filed the aforesaid suit claiming partition of half share in the suit properties allegedly left by Late Muslim Khan and after his death they inherited the same according to the law of inheritence under the Mahomeddan Law. From the genealogical table given in the plaint as also in the impugned judgment, it appears that Late Muslim Khan had two wives, namely, Most. Mariam and Bibi Sitabo. The defendants- appellants are the sons, daughters and other Heirs from the first wife of Late Muslim Khan, while the plaintiffs-respondents are the heirs and successors from the second wife of Late Muslim Khan. The plaintiffs' case was that Late Muslim Khan who was a business man and he died and possessed the ancestral resideential house bearing Holding No. 311 in Word No. 4 of Giridih Municipality and another house bearing Holding No. 337 of Ward No. 4 of Giridih Municipality. He had also acquired two other house in Giridih town in the name of his daughter-Kulsum Bibi. The plaintiffs' further case was that Muslim Khan died in the year 1925 and after his death the houses bearing Holding Nos. 311 and 337 besides the family business came in possession of the four sons of Muslim Khan from the above named two wives. The plaintiffs further pleaded that the two houses bearing Holding Nos. 29 and 261 which were acquired in the name of Kulsum Bibi remained in her possession till her death in the year 1947. The plaintiffs' case was that the two sons from the first wife, namely, Habib Khan and Abdul Aziz Khan, were clever and shrewed persons and in due course took complete control of the business of the joint family taking advantage of the simplicity of their step brothers-Ranim Khan and Abdul Zabar Khan, father of the plaintiffs. Having come in control of the family business, they received the income' from such business as also rent from the ! tenants and utilised such income for acquiring three other houses bearing Holding Nos. 468, 596 and 610 in Giridih town. According to the plaintiffs, therefore, the three houses were also acquired by the joint family business. It is further stated that even Holding Nos. 29 and 261 which were acquired by Late Muslim Khan in the name of her daughter Kulsum Bibi, came in possession of the sons of Late Muslim Khan after the death of Kulsum Bibi, which took place in the year 1947. The plaintiffs, therefore, claim 8 Annas share in the house properties mentioned in the Schedule of the plaint. The plaintiffs also challenged the transfer made by the defendants in respect of Holding Nos. 261 and 596. The defendants-appellants contested the suit by filing written statement denying and disputing each and every allegations made in the plaint. The defendants denied the existence of any joint family business. It was also denied that Late Muslim Khan inherited the ancestral houses bearing Holding Nos. 311 and 337 or that he had acquired Holding Nos. 29 and 261 in the name of his daughter-Bibi Kulsum. It was also denied that after the death of Muslim Khan, Holding Nos. 311 and 337 came in possession of his four sons. The defendants categorically denied that any property was purchased from the income of the joint family business or the income derived from rent. The defendants' case was that Late Muslim Khan had himself started the business of selling oil and perfumes on a very small scale. Out of his earnings he acquired only one house property on 16-6-1900 bearing Holding No. 337 b} virtue of sale deed dated 6-6-1900 in his own name. In the year 1909 he gave that house property to his first wife-Bibi Mariam in lieu of Dower Debt and put her in possession. Bibi Mariam thereafter got her name mutated in the Zamindari Sharista of Equitable Coal Company and later on when the Giridih Municipality was constituted, she continued to pay rents and taxes. So far the house property bearing Holding No. 311 is concerned, the defendants' case was that Bibi Mariam acquired the said house herself by a registered Deed of Sale dated 17-2-1900 in her own name and it was never purchased by Late Muslim Khan. Bibi Mariam died, possessed of the aforesaid two house properties, in the year 1955 leaving behind her two sons, the defendants, who succeeded her and came in possession of the aforesaid two house properties. They got their names mutated in respect of those two houses and continued to pay rent and taxes. The further case of the defendants is that Holding No. 261 was acquired and purchased by the husband of Kulsum Bibi from his own money and it was never acquired and possessed by Late Muslim Khan. After the death of Bibi Kulsum in the year 1947, the properties came in the hands of the defendants as the husband of Bibi Kulsum predeceased her. So far the remaining suit properties are concerned, the defendants claim that those properties had been jointly acquired by the two sons of Bibi Mariam by registered Deeds of Sale from time to time and the properties continued to be in their possession. It was claimed that after the death of Muslim Khan, these two sons from his first wife started their own business of stationery and other goods of merchandise. It is stated that the plaintiffs who are the step brothers always remained separate and had no concern with the business and properties of defendant No. 1 and his brothers.