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2004 DIGILAW 280 (JHR)

Md. Amin v. Md. Yasin @ Yasim Mian

2004-03-16

VISHNUDEO NARAYAN

body2004
ORDER Vishnudeo Narayan, J. 1. Heard the learned counsel for the parties. 2. This appeal has been preferred at the instance of defendants-appellants against: the impugned order dated 5.3.2003 by Sub-Judge VIII in Title Partition Suit No. 41 of 1997 whereby and whereunder the petition of the plaintiffs- respondents to appoint receiver in respect of the suit property was allowed, though the said impugned order does not speak regarding the appointment of any receiver therein. It has been submitted by the learned counsel for the appellants that the suit property is the self-acquired property of original defendant Abdul Kadir, the natural father of the parties to this case and the respondents cannot have any right and title in respect thereof in the life time of Abdul Kadir and, therefore, the question of any appointment of receiver does not arise in this case. 3. The contention of the learned counsel for the respondents is that the construction was made on the self-acquired land of Abdul Kadir by virtue of the fund provided by the respondents and by virtue of that the respondents are entitled to have shares in the said property and there is subsequent event that said Abdul Kadir has died during the pendency of this case and the respondents have share in the suit property and, therefore, there is no illegality in the impugned order of appointment of receiver. 4. The respondents have filed Title Suit No. 41 of 1997 for metes and bounds partition of the suit property impleading Abdul Kadir as a party defendant. 5. There is no dispute in respect of the fact that the suit property is the self-acquired property of original defendant Abdul Kadir. In the Mohammedan Law, a son has no interest in the self-acquired property of his father. He can have a share as per law in the said self-acquired property of his father on his demise. The suit was filed by the plaintiff against his father Abdul Kadir claiming partition of his self-acquired property to the extent of his share. The ground for claim is that he has contributed fund to his father for construction of the house over the said land. It is needless to say that by providing money to his father for constructing the house over his sell-acquired land, no interest accrues in the said property in favour of the plaintiffs. The ground for claim is that he has contributed fund to his father for construction of the house over the said land. It is needless to say that by providing money to his father for constructing the house over his sell-acquired land, no interest accrues in the said property in favour of the plaintiffs. In this view of the matter, the plaintiffs-respondent do not appear to have a prima facie case for appointment of her receiver in respect of the suit land in this case. Furthermore, the learned Court below by the impugned order has also not appointed any receiver in spite of allowing the petition of the plaintiffs and as such it suffers with legal infirmity. In the absence of any prima facie case of the plaintiffs-respondents for appointment of the receiver in respect of the self-acquired property of original defendant Abdul Kadir, the impugned order is unsustainable. 6. There is merit in this appeal and it succeeds. The appeal is allowed and the impugned order dated 5.3.2003 is set aside. 7. The learned Court below is directed to dispose of the issue of maintainability of the suit as a preliminary issue at the earliest without being prejudiced by this order.