ABDUL MARIAN Vs. MD MURAD ALI

JUDGEMENT

(1.) MD . Murad Ali (hereinafter called as plaintiff) filed Partition Suit No. 35/74 in the court of 1st Addl. Sub -Judge, Hazaribagh, seeking a decree for partition of his 1/4th share in the property of Hazi Munshi Naziruddin described in ( Schedule 'A ' at the foot of the plaint and for carving out a separate Takhata of his 1 /4th share. The suit was decreed on 29.7.77 by the trial court and the prelimi nary decree was accordingly prepared. Being aggrieved thereby, the defendant, Abdul Manan (hereinafter called as defendant -appellant) filed a First Appeal No. 223/77R before this Court. During the pendency of the said appeal, final decree was also prepared against which another First Appeal No. 35/87R was filed by the defendant -appellant. Vide judgment dated 22.5.89, the learned Single Judge dismissed the F.A.No.223/1977 filed against the preliminary decree. However, F.A.No. 35/87R filed against the final decree was allowed and the trial court was directed to prepare the final decree afresh in accordance with law, keeping in view the observations made in the judgment. The defendant -appellant, being dissatisfied with the judgment of the learned Single Judge, has filed this appeal under clause 10 of the Letters Patent.

(2.) THE plaintiff filed the suit with the allegations, inter -alia, that Hazi Munshi Naziruddin had two wives, Bibi Alimen @ Bibi Kolsum and Bibi Saira; that Bibi Alimen died in 1947 and Hazi Munshe Naziruddin also died in 1960 leaving no issue from any wife; that before his death Naziruddin executed a Hinhayati deed dated 8.8.1958 in favour of his wife Bibi Saira giving his property to her till her life time with the right to remain in its exclusive possession and to manage and protect it and to get her name mutated as such in the revenue record with the condition that she will pay all the Municipal and other taxes in respect of the property and will also remit a sum of Rs. 20/ - every year out of the income from property as an offering to Hazart Sah Maulana Amanullah Saheb at Phulwari Shariff, District -Patna. It was also provided in the said deed that after her death, the entire property would devolve upon his nephew namely Abdul Manan (defendant -appellant). Bibi Saira died in 1972. Hence, the suit for partition by the plaintiff. The plaintiffs claim is that he along with defendant no.6 are entitled to 1 /4th share in the suit property by virtue of being heirs of Bibi Saira who was the widow of Naziruddin who died issue -less. The plaintiff's further claim is that as the defendant no.6, by agreement dated 22.11.73, had transferred his right, title and interest in his favour, he is entitled to 1 /4th share in the suit property.

(3.) THE trial court held that the Hinhayati deed executed by Naziruddin was never acted upon and, therefore, Bibi Saira upon the death of Naziruddin, being his widow, was entitled to 1 /4th share in his property and the remaining 3/4th share has to go to the defendant -appellant.