LATIFANNESSA BIBI Vs. ABDUL RAHAMAN

JUDGEMENT

(1.) This is an appeal by the defendants from a final decree in a suit for partition passed by the Officiating Subordinate Judge of Dacca on 9 September 1929. It appears that after the preliminary decree an application was made by one of the defendants for sale of the property in suit in accordance with the provisions of Section 4, Partition Act (Act 4 of 1893). The application of the defendants for invoking the principles laid down in the Partition Act, and directing the sale of the property in accordance therewith, was rejected by two orders of the Court dated respectively 12 March 1928 and 26 June 1929?orders Nos. 109 and 144 of the order sheet at pp. 4 and 11 of the paper book. After the rejection of the application under Section 4 the Court appointed a Commissioner to effect the partition and the Commissioner submitted his report and the final decree was passed on the date already mentioned. Against that decree the present appeal has been brought. It should be observed here that the Court proceeded to direct partition by the Commissioner notwithstanding the protest of the defendants whose application under Section 4 had been rejected.

(2.) In the present appeal the defendants have put forward the same contentions which they had raised before the Subordinate Judge and contend that in view of the provisions of Section 4 of Act 4 of 1893 the Subordinate Judge should not have proceeded to direct any partition but should have proceeded in accordance with the provisions of Section 4. In order to understand the contention so raised by the appellants a few facts should be stated. It appears that one Shamsuddin had a dwelling house in the town of Dacca comprising two plots of land which are described in Schedules 1 and 2 of the plaint. Shamsuddin died leaving him surviving two sons Ahamad Hossain and Taleb who is defendant 3 in the present suit and a daughter Nazibunnessa. Ahmad had a daughter Azgari who was defendant 4 in the present suit and has died after the institution of the suit. The plaintiff is the husband of Azgari. Defendant 1 in the present suit is one Aftabuddin who is the son of the Najibunnessa. Defendant 2, Fatima, is the daughter of Najibunnessa. Aftabuddin died after the suit and his heirs have been substituted in his place. Now, it appears that Shamsuddin conveyed by a Hebabil ewaj the whole of the Schedule 2 lands to his wife Mashbi Bibi and 12 annas share of Sch. 1 property to his son Taleb and 4 annas of the same to Najibunnessa Taleb, after the death of his mother Mashbi Bibi became entitled to the entire 16 annas of Sch. 2 property. On 8 Baisakh 1327 B. S. corresponding to some time in April 1920 the plaintiff purchased an eight annas share of both schedule lands from Taleb Hossein and commenced a suit for partition of the dwelling house which admittedly consists of these two schedules on the strength of his purchase.

(3.) Defendants 1 and 2 inherited about 3 annas old share of plot 1 from their mother Najibunnessa and they also purchased certain shares of both the plots from defendant 3 Taleb, some time in Baisakh 1327 B. S. The plaintiff's purchase was in the name of his wife Azgari. The partition suit was dismissed in the first instance. An appeal was taken to this Court and this Court came to the conclusion that plaintiff's purchase was for himself and that his wife was really a benamidar for him. The High Court set aside the decree of the Subordinate Judge dismissing the plaintiff's suit and directed that a preliminary decree for partition be made and remitted the case to the Subordinate Judge for making the final partition in the suit. This was by a decree of this Court passed by B. B. Ghose and Roy, J., on 21 June 1927.