BIBI KANIJ FATIMA Vs. JAI NARAIN RAM

JUDGEMENT

(1.) This is an appeal on behalf of defendant 7 against the preliminary decree for partition passed by the learned Subordinate Judge of Motihari, the subject-matter of partition being kast lands belonging to a Mahomedan family situated in a number of villages. A short genealogical table will explain the questions in controversy. One Junab Ali died leaving two sons, Mohammad Din and Muradudin, and also a daughter, Bibi Sarla. Mohammad Din married Bibi Nawbati from whom he had a daughter, Bibi Habiban, defendant 5 in the action. Later on he married Bibi Bhango, defendant 9 in the action, from, whom he had two sons, Fateh Muhammad, defendant 10, Abdul Hasan, defendant 4, and two daughters, Bibi Mariam, defendant 6 and Bibu Kaniz, defendant 7. Abdul Hasan was the father of Mazharul Haq, defendant 1, Zahurul Haq, defendant 2, and of Bibi Sayeeda Khatoon, defendant 3. Muradudin, the second son of Junab Ali, married Bibi Bhango. They had a son, Wali Muhammad, defendant 8, who at the time of the death of Muradudin was aged 12 or 14 years only and so he and his estate which he inherited from his father came into possession of Bibi Bhango, who was his guardian. Bibi Bhango, however, a few years later married the elder brother of her husband as stated already. Muhammad Din is also dead.

(2.) On 3 April 1939, Bibi Bhango, who according to the Mahomedan law was possessed of one anna share in the lands as the heir of her deceased husband Muradudin and also one anna share as the heir of her deceased second husband Muhammad Din, executed a deed of gift in favour of defendant 7. The plaintiff, who is an auction-purchaser of the interest of defendant 10, instituted a suit giving rise to this appeal on 18 January 1940, for a partition in which he claimed that a separate patti of two annas should be given to him. Some of the defendants merely put forward their claim to separate patti. Defendant 8 claimed that he was entitled, to the, entire eight annas share of his father Muradudin upon the ground that Bibi Bhango relinquished her claim to one anna share as the result of a certain batwara which was effected between him and his mother. He also challenged the validity of the deed of gift in favour of defendant 7. The other defendants besides challenging the validity of the deed of gift in favour of defendant 7 also pleaded that the gift was void as offending the doctrine of Mushaa in Mahomedan law. Defendant 6 also took the plea that the entire suit was bad for non-joinder of Bibi Sarla, the daughter of Sheikh Junab Ali, who has one fifth share in the estate under partition, and was, therefore, a necessary party to the suit. In reply to this it was asserted by the plaintiff and by defendants 3 to 5 and 7 that Bibi Sarla is not a daughter of Junab Ali, and secondly that even if she was the daughter of Junab Ali she had no title to any of the properties in question as they did not originally belong to Junab Ali.

(3.) The learned Subordinate Judge came to the conclusion that Bibi Sarla was the daughter of Junab Ali, but the properties under partition did not originally belong to him, and, therefore, Bibi Sarla had no share. He further found that the story set up by defendant 8 that Bibi Bhango had relinquished her claim to one anna under the inheritance of her husband Muradudin was not true. He accepted the case that Bibi Bhango had a total share of two annas, that is to say one anna inherited from Muradudin and one anna inherited from Muhammad Din. He also found that the deed of gift was duly executed by Bibi Bhango and the donee, defendant 7, was put in possession. But he took the view that as defendant 7 could not be a co-heir of Bibi Bhango in respect of the inheritance of Muradudin, although she was a co- heir so far as the inheritance of Muhammad Din was concerned, the deed of gift would be valid only to the extent of one anna which the donor inherited from Muhammad Din. He also held that as the law contemplated a partition before the controversy arose and that was not done in this case, therefore, Bibi Bhango could not execute any valid gift in favour of defendant 7 in respect of the share inherited by her from Muradudin, and directed that that share should go to her children by the two husbands, that is to say, defendants 6, 7, 8 and 10. Against this decision, defendant 7 has preferred this appeal and it is confined to the consideration of the question whether the learned Subordinate Judge was right in holding that the deed of gift in her favour was invalid to the extent of one anna in the inheritance of Muradudin. The learned advocate for defendant 8, the respondent before us, challenged the other findings of the learned Subordinate Judge but only to support the decree which was passed. He argued that the donor herself was not in possession of one anna share, that the donee was not in possession, and as there was admittedly no partition in fact before the deed of gift, the prohibition contained in the doctrine of Mushaa was correctly applied.