MOSAMMAT NAMIRAN NESSA Vs. AFTARUDDIN

JUDGEMENT

(1.) This petition for leave to appeal is directed against the judgment and order dated 16.08.2005 passed by a Single Bench of the High Court Division in Civil Revision No.3175 of 2002 heard analogously with Civil Revision No.3154 of 2002 making the Rules absolute.

(2.) The plaintiffs of Other Class Suit No.3 of 1999 instituted the suit in the Court of Assistant Judge, Patgram, Lalmonirhat for a declaration that the Wasiatnama dated 25.10.1976 executed by Namiran Nessa is illegal, void, inoperative, fraudulent and not binding upon the plaintiffs and also for a preliminary decree for partition stating, inter alia, that the land of S.A. Khatian No.305 of Mouza West Jagatber belonged to Namiruddin and others to the extent of 14.33 acres and Aftaruddin to the extent of 3.03 acres. The land of S.A. Khatian No.388 of the same Mouza was recorded in the name of Namiruddin and others each having a share of .15 acre. The land of S.A. Khatian No.925 belonged to Namiruddin and others each having a share of 0.40 acre. The further case of the plaintiff is that by an amicable partition Namiruddin got 3.34 acre of land in his own share and while in possession he died leaving behind one widow Nashiran Bewa and full brother's sons, the plaintiff Nos. 1-3. After the death of Namiruddin, the plaintiffs while in possession in the suit land, the defendant came to the suit land of S.A. Khatian No.305 on 15.03.1989 and tried to cut and take away some trees. They were obstructed by the plaintiffs and at that time they disclosed about the deed of Wasiyatnama in question and claimed title to 3.44 acres of land. Thereafter, the plaintiff got the certified copy of Wasiatnama on 16.03.1998 and came to know for first time that Namiruddin had executed the Wasiyatnama in question on 25.10.1976. The defendant never possessed the suit land on the strength of the Wasiyatnama.

(3.) The defendant Nos.1 and 23 contested the suit by filing a written statement denying the material allegations made in the plaint. Their case is that Badaruddin the father of the plaintiff Nos.1 and 2 sold 1.68 acres of land to Huzuruddin, the defendant No. 23. The plaintiff No. 3 sold 1.79 acre of land to defendant No.23. Shahidur Rahman and others sold some land to defendant No.23. The defendant No.23 got an area of 4.05 acres of land. The further case is that Namiruddin had no issue and he adopted Namiran Nessa as his daughter. Namiran Nessa was given in marriage with the defendant No.23 and was taken as domesticated son-inlaw. They used to reside at the dwelling house of Namiruddin who being satisfied, expressed his intention to transfer some land by a deed of Heba-bil-ewaj in their favour. The deed writer instead of writing a deed of heba-bil-ewaj wrote a Wasiatnama in favour of the defendant. The deed was duly registered at the Hatibanda Sub-Registry Office. The further case is that Baje Mahmud demanded the share of Namiran whereupon a salish was locally held. As per the decision of that salish the defendant No.1 transferred 50 decimals of land by kabala dated 22.04.1978 in favour of Baje Mahmud.