KALAMJAN BIBI Vs. SAHAJANA BIBI

JUDGEMENT

(1.) This is an appeal by the defendants against the judgment and decree of the Additional District Judge of Tipperah reversing the decision of the Subordinate Judge in a suit for partition. The plaintiffs claim as heirs of one Hossanaddin. He left four daughters, two of whom are plaintiffs and two are defendants. Hossanaddin is said to have-executed a registered kabala in favour of of his wife of all the lands in dispute. That document was marked Ex. A. After the death of Hossanaddin his widow executed a document Ex. B dated the 29 Assin 1316, by which she transferred all the lands she received from her husband under the document Ex. A in favour of one of her daughters defendant 1. Defendant 1 resided with her husband with Amina Bibi, the widow of Hossanaddin. After the death of Amina Bibi the plaintiffs have brought this suit for partition on the allegation that they are in-possession of some of the properties left by their father. They disputed the document Ex- A also. The Subordinate Judge found both the documents to be genuine; and bona fide and he held that title passed to defendant 1 under the document Ex. B, and upon that finding he dismissed the suit. On appeal by the plaintiffs the learned Judge has reversed that decision.

(2.) One matter should be first stated and it is this, that one of the plaintiffs, Moyna Bibi, gave up her claim to the property by a petition in the Court of appeal. There does not seem to be any reason why the learned Judge did not act upon that petition. The pleader of that plaintiff was certainly responsible for the fact as to whether that petition was filed with the knowledge and consent of Moyna Bibi. Moyna Bibi has been made a respondent here and defendant I has claimed the share which would belong to Moyna Bibi even if she is found to have a share, on the basis of the petition. But Moyna Bibi has not appeared in this Court to dispute defendant 1's title. The first thing, therefore, that is necessary to be mentioned is that Moyna Bibi would not be entitled to any share in the property and that share if she has any would go to augment the share of defendant 1. It should also be noticed that another daughter of Hossanaddin who was made a defendant did not claim any share in the property left by her father. She supports the case of defendant 1. There is then left only one of the plaintiffs Sahajan Bibi, plaintiff 1 who is really the contesting plaintiff.

(3.) The learned Judge has reversed the decision of the Subordinate Judge mainly upon the ground that Amina Bibi, the mother of the plaintiffs, was an illiterate pardanashin woman and any one taking a conveyance from such a person was bound to prove affirmatively not only that the transferrer executed the iustrument but understood and grasped the full import of what she was doing. The learned Judge ,held that there was no evidence that there was any explanation of the contents of the instrument having been made to Amina Bibi and, therefore, the defendant 1 has not been able to prove the validity of the document so as to affect the title of the plaintiff by inheritance. The objection does not appear to have been taken distinctly in the trial Court by the plaintiffs that the document was not explained to their mother.