SAYESTA BIBI Vs. JUMA SHA

JUDGEMENT

(1.) This appeal, at the instance of the heirs of defendant No. 1, is directed against the judgment of the High Court Division, Sylhet Bench passed in Second Appeal No. 1509 of 1968.

(2.) The plaintiff-respondents instituted Title suit No. 22 of 1962 in the Court of Munsif, First Court, Sadar, Sylhet for partition of the undivided family homestead in the suit and also prayed for purchasing the share of defendant No. 1, a stranger-purchaser of a portion of the suit homestead from some co-sharers of the plaintiffs. Their case, in brief, is that the two brothers Hadu Shah and Nadu Shah took lease of southern half of the disputed homestead from the landlords. Subsequently Nadu Shah atone took lease of the northern half. Hadu Shah got 1/4th and Nadu Shah got 1/4th share of the homestead. Hadu Shah died leaving two daughters Feroja and Hafiza and brother Nadu Shah. The plaintiffs, being the heirs of Nadu Shah, claimed 5/6th share of the suit property. There was no previous partition. As the plaintiffs' demand for an amicable partition was not conceded they filed the present suit for partition. Further case of the plaintiffs is that they were entitled to purchase the share of defendant No. 1, a stranger purchaser, under section 4 of the Partition Act and read with section 44 of the Transfer of Property Act.

(3.) Defendant No. 1, alone contested the suit, His case was that Bedu Shah was the original owner of the suit land. He died leaving two sons, Hadu and Nadu, and a daughter, Modina. Hadu Shah died leaving one son, Sadu Shah, two daughters Firoza and Hafiza, and a widow, Kutibibi. Kuti Bibi died leaving Firoza and Hafiza who sold their interest to Ambor and others. Modina died leaving one son Amjad, who leaving two sons Ambor and Amfor. Amfor and minor children of Ambor sold half of the homestead to defendant No. 1 by a kabala dated 15.2.87 and since then he was in continuous possession in the specific portion of the land he purchased. It was further contended that the plaintiffs' claim was excessive and section 4 of the Partition Act was not applicable in this case.