SEKENDAR ALI MRIDHA Vs. SADARUDDIN BHUNIYA

JUDGEMENT

(1.) These two appeals have arisen out of a preliminary decree in a suit for partition. The facts of these cases are very complicated and the calculation of shares which is involved in the claims put forward by the respective parties is a matter about which no very clear idea can be had unless the various documents upon which the Court below has relied are brought before us. For the purposes of the appeals however it will not be necessary to go very much into details. The facts, so far as they have got to be recited for the purposes of appreciating the contentions that have been put forward before us, are the following:

(2.) One Mariam Bibi was owner of a 4 annas share in an Estate Touzi No. 9954 of the Dacca Collectorate. She had three nephews, Golam Hossain, Delwar Ali and Enayet Hossain. Enayet died leaving as his heir his daughters son, one Syed Bakhar. In 1269, Mariam Bibi executed a wakf deed in respect of the said 4 annas share of Estate Touzi No. 9954 and also of some other properties, appointing her nephew Golam Hossain as Mutwalli. The Mutwalli came into possession and got his name registered in the Collectorate as such and thereupon the said 4 annas share was carved out and formed into a new estate, No. 13173, named Khalil Rahaman. In 1312, Golam Hossain gave a patni settlement to one Raj Chandra Karmakar of the said estate and also of some other properties. Settlement was taken by the latter for himself and on behalf of his brothers and nephews. In 1271, Mariam died. Delwar Ali admitted the patni, but Syed Bakhar did not do so. In Sraban 1313, Golam Hossain and Delwar Ali sold 2/3rds of the Estate to one Moulvi Alimuddin, purporting to ignore the wakf and presumably on the footing that they were the heirs of Mariam Bibi to the extent of 2/3rds share. In Chaitra 1313, Raj Chandra sold a 1 anna share of the patni to one Kalimuddi alias Kala Meah. This 1 anna share eventually passed to defendants 85 to 105 of the present suit.

(3.) In 1315 Raj Chandra and his brothers and nephews sold an 8 annas share of the patni to Moulvi Alimuddin in the benami of one Akshoy Kumar Das. The next year, Syed Bakhar, who claimed to have inherited the 1/3 share of the estate left by Mariam Bibi, granted a patni of that share to Moulvi Alimuddin. The position therefore at that time was that in Estate No. 13173, 2/3rds share belonged to Alimuddin and 1/3 to Syed Bakhar; that in Patni Raj Chandra 1 anna share came to belong to Kalimuddin and 8 annas share to Alimuddin; and that Raj Chandra and his brothers and nephews were left with the remaining 7 annas share. Then came a fresh chapter of events. Alimuddin sold the 4 annas of the Taluk and of Putni Alimuddin to one Amanulla Bhuiya and 2 annas thereof to one Lalit Mohan Roy. Alimuddin, Amanulla and Lalit on the strength of this purchase applied for registration of names, but their applications were opposed by one Syed Mozuffar Ali who asserted that under the wakf created by Mariam Bibi he was the Mutwalli. Prayer for registration of names was refused. On that Alimuddin, Amanulla and Lalit instituted a Suit No. 27 of 1921 for getting the wakf declared invalid and for declaration of their title by purchase. This suit was decreed, the title of the said plaintiffs was declared and thereafter Estate No. 13173 being partitioned, three separate estates were formed: the original Estate No. 13173 now consisting of 6 annas odd share remained with Alimuddin; Estate No. 15784 consisting of 2 annas odd share with Amanulla and 1 anna odd share with Lalit Mohan Roy; and Estate No. 15783 consisted of 1/3 share of the original Estate of Syed Bakhar. Under the first two named estates remained the Putni Raj Chandra, and under the last one Putui Alimuddin.