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2001 DIGILAW 347 (JHR)

Sheikh Abdul Karim @ Ghasita Mian v. Sajada Bibi

2001-05-30

GURUSHARAN SHARMA

body2001
JUDGMENT Gurusharan Sharma, J. 1. Defendants 1 and 2 of Partition Suit No. 3 of 1975 are appellants. The suit was dismissed. However, the plaintiffs succeeded in Title Appeal No. 61 of 1980 and obtained a preliminary decree for partition of their share in the suit property. 2. The suit was field for declaration that sale-deed dated 1.9.1969 said to be executed by Mosstt. Somaria Bibi in favour of Sheikh Abdul Karim in respect of 83 decimals of land in Hussainabad having been brought into ex- instance after Bakshishnuna made in favour of plaintiffs 1 to 5 and defendants 2 and 3, conferred no title on defendant No. 1 and the same was void and not binding on the plaintiffs as well as defendants 2 and 3 and did not affect their title and possession. Further. relief for a preliminary decree for partition of four annas share each of plaintiffs 1 to 5 and was also sought for. 3. Roza Mian died leaving behind his widow Mosstt. Somaria Bibi, a son Md. Sadique. who died issueless, and four daughters. Kakiri Bibi (plaintiff No. 5), late Sakina Bibi, wife of Rasool Mian (plaintiff No. 1), Jumratan Bibi (defendant No. 3) and Bakridan Bibi (defendant No. 2), wife of Kalim Mian (defendant No. 1). Plaintiffs 2 to 4 and defendants 4 to 6 were respectively sons and daughters of late Sakina Bibi from her husband Rasool Mian (plaintiff No. 1). 4. Admittedly, lands and house properties described in Schedule-B to the plaint belonged to Roz. Mian. Customary Dain Mohar in his family was Rs. 500/- with two Dinars. After his death, his widow Somaria Bibi executed a deed of gift dated 15.3.1963 (Exhibit 9) in favour of her son and three daughters and husband of her daughter Sakina Bibi in respect of entire Schedule-B properties with recital that she got the same in lieu of dower-debt from her husband. 5. There was no document to show that Roza Mian had transferred his properties to his wife in his life time. Her name was also not mutated during life time of her husband. First rent receipt (Exhibit A/5) of January, 1951, in the name of Somaria Bibi was granted after the death of Roza Mian, who died in between 1938- 40. There was no document to show that Roza Mian had transferred his properties to his wife in his life time. Her name was also not mutated during life time of her husband. First rent receipt (Exhibit A/5) of January, 1951, in the name of Somaria Bibi was granted after the death of Roza Mian, who died in between 1938- 40. Parties miserably failed to establish that during his life time Roza Mian had transferred Schedule-B properties to his wife Somaria Bibi in lieu of dower debt. Mutation of the name of Somaria Bibi was done in the landlord Sharista after death of her husband and not by virtue of her obtaining the property in question in lieu of dower debt from her husband, when he was alive. 6. In such circumstances, it cannot be said that by Exhibit 9 Somaria Bibi made gift of entire Schedule property, rather the said deed of gift was only with respect to her 1/8th share which she inherited after death of her husband. 7. The Court of appeal below on the basis of evidence adduced by the parties recorded a finding of fact that Exhibit 9 was legal, valid and operative in respect of l/8th share of the donor in Schedule B property and the donees accepted the same and came in possession thereof, ft was a gift made by one co- heir to other en-heirs. 8. Once Exhibit 9 was held to be legal and operative document in respect of the share of Mosstt. Somaria Bibi, she had 110 authority to execute the sale deed dated 1.9.1969 (Exhibit D) in favour of Karim Mian (defendant No. 1) who has husband of her daughter Bakridan Bibi (defendant No. 4). Defendant No. 1, therefore did not acquire any right title and interest or possession over the suit land by virtue of Exhibit D. 9. So far as Exhibit C deed of cancellation of gift Exhibit 9 executed by Mosstt. Somaria Bibi after six years, i.e, in the year 1969. was concerned, in my opinion there was no occasion for Mosstt. Somaria Bibi to cancel Exhibit 9 after long lapse of six years and at any rate Exhibit 9 could not have been revoked by Exhibit C. Exhibit 9 could have been annuled or declared void only by virtue of a decree passed by a civil Court of competent jurisdiction. 10. Somaria Bibi to cancel Exhibit 9 after long lapse of six years and at any rate Exhibit 9 could not have been revoked by Exhibit C. Exhibit 9 could have been annuled or declared void only by virtue of a decree passed by a civil Court of competent jurisdiction. 10. In my opinion in the aforesaid circumstance, preliminary decree for partition of plaintiffs share in the suit property was rightly passed by Court of appeal below. 11. There is no merit in this second appeal. It is accordingly dismissed, but without costs. 12. Appeal dismissed.