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2014 DIGILAW 699 (PAT)

Most Bibi Masooda Khatoon v. Moinuddin

2014-06-24

MUNGESHWAR SAHOO

body2014
MUNGESHWAR SAHOO, J.:–The plaintiff have filed the First Appeal against a part of the Judgment and Decree dated 29.07.1978 passed by the learned Second Subordinate Judge, Patna in title suit No.16 of 1974. 2. The plaintiffs filed the aforesaid title suit No.16 of 1974 claiming partition of the suit property to the extent of 6 ana share therein. The plaintiff’s case in short is that Mostt. Ahmadi was the owner of the suit property. She died leaving behind her husband Sheikh Jan Bux, one son Khairat Hussain, two daughters, namely, Bibi Masaddi and Bibi Fashihan. Her heirs came in possession of the property after her death to the extent of their share. Jan Bux had 4 ana share. Khairat Hussain had 6 ana share and Bibi Masaddi and Fashihan each have 3 ana share in the property of Bibi Ahmadi according to Sunni School of Mohammad Law. The son of Ahmadi namely, Khairat Hussain had two wives. He had one son Jamal Hussain from his first wife and two sons namely, Aminuddin and Nihar Hussain from second wife. The two sons pre-deceased their father leaving behind their sons from second wife Moinuddin and Md. Firoz respectively who are defendant No.1 and 2. The son through first wife, namely, Jamal Hussain died leaving behind his widow Amina Khatoon and two daughters Masuda Khatoon and Jakila Khatoon who all are plaintiff No.1 and 3. Jan Bux was in possession of the property along with his 4 ana share. Jan Bux executed a registered sale deed on 5.8.1907 with respect to his 4 ana share in favour of Jamal Hussain, the son from first wife of Khairat Hussain. Khairat Hussain during his life time executed a registered deed of gift dated 21.07.1948 in respect of his 6 ana share in favour of Jamal Hussain, Moinuddin, and Firoz each 2 ana share who jointly came in possession. Then, Jamal Hussain executed registered sale deed on 07.11.1960 with respect to 62 decimal of land out of his 6 ana share in favour of his wife Aamna Khatoon who is plaintiff No.3. He again sold 16 decimal of land in favour of defendant No.6 and then for remaining property out of 6 ana he executed a deed of gift dated 18.01.1971 with respect to the lands mentioned in sale deed dated 5.8.1907 in favour of his two daughters. He again sold 16 decimal of land in favour of defendant No.6 and then for remaining property out of 6 ana he executed a deed of gift dated 18.01.1971 with respect to the lands mentioned in sale deed dated 5.8.1907 in favour of his two daughters. After death of Jamal, plaintiffs are coming in possession of the property. The heirs of Bibi Masiddi and Fashihan / purchasers from the heirs are defendant No.3 to 6 who are coming in possession of the 3 ana share of Masiddi and 3 ana share of Fashihan. 3. The further case of the plaintiff is that with consent the parties are coming in separate possession of lands according to their convenience but there has been no partition by metes and bonds. In this regard, the plaintiff claim 6 ana share, i.e., 4 ana share of Jan Bux sold to Jamal Hussain by registered sale deed dated 5.8.1907 and 2 ana share gifted by Khairat Hussain by registered gift deed dated 21.07.1948. 4. The defendant No.1 and 2 filed separate contesting written statement alleging that there had already been partition by metes and bounds in the year 1945. Bibi Ahmadi had taken loan from her son Khairat Hussain and Khairat Hussain got the sale deed dated 5.8.1907 from Jan Bux in the name of his minor son Jamal Hussain, as such Jamal Hussain the father of plaintiff No.1 and 2 and husband of plaintiff No.3 never acquired right title or interest with respect to 4 ana share of Jan Bux by virtue of the aforesaid sale deed dated 05.08.1907 nor they ever came in possession thereof. Khairat Hussain had right title and interest in respect of the said 4 ana share as he was in cultivating possession as such Khairat Hussain had got 10 ana share. He executed the registered gift deed on 21.07.1948 in favour of Jamal Hussain and defendant No.1 and 2 with respect to 10 ana share to the extent of 1/3rd to the 3 beneficiaries. After death of Jan Bux, there was partition and in that partition Khairat Hussain got 11 bigha 7 katha out of total 17 bigha 7 katha. The defendants have got 6 ana 8 pie out of 10 ana share because of deed of gift and 9 pie by inheritance from Jamal Hussain who died leaving behind no son. After death of Jan Bux, there was partition and in that partition Khairat Hussain got 11 bigha 7 katha out of total 17 bigha 7 katha. The defendants have got 6 ana 8 pie out of 10 ana share because of deed of gift and 9 pie by inheritance from Jamal Hussain who died leaving behind no son. As such, the share of defendant No.1 and 2 will not be less than 7 ana 6 pie and the plaintiff have share to the extent of 2 ana 7 pie. There is no unity of title. 5. The defendant No.3 to 6 also alleged that there was partition in the year 1945. Their defence is also on the same line. 6. On the basis of the aforesaid pleadings, the following issues were framed by the trial Court :— (i) Is the suit as framed maintainable? (ii) Have the plaintiffs got a valid cause of action? (iii) Is the suit property valued and Court fee paid sufficient? (iv) Have the plaintiffs got unity of title and jointness of possession over the suit property with the defendants? If so to what extent? (v) Is the story of private partition by metes and bounds correct? (vi) Are the plaintiffs entitled to a decree for partition? If so, to what extent and with respect to which of the properties? (vii) To what relief or reliefs if any are the plaintiffs entitled? 7. After trial, the learned Court below held that on the basis of ext.3, 4 ana share of Jan Bux cannot be set apart from the plaintiff because of the fact that the said sale deed was not operative as there is no evidence to the effect vide paragraph 26. The Court below also held that in absence of ext.3, the property, i.e., 10 ana share devolved on Khairat Hussain according to the Mohammadan Law vide paragraph 27. The Court below also held that there is unity of title and jointness of possession and there was no previous partition. The Court below also held that in absence of ext.3, the property, i.e., 10 ana share devolved on Khairat Hussain according to the Mohammadan Law vide paragraph 27. The Court below also held that there is unity of title and jointness of possession and there was no previous partition. The parties were in separate possession according to convenience vide paragraph 36, the Court below ultimately came to the conclusion that the plaintiffs are entitled to get partition decree but not according to the share claimed by them but according to their shares which will be available to them treating 10 ana share in the entire estate of Bibi Ahmadi was available to Khairat Hussain at one point of time. Accordingly, decreed the plaintiff’s suit in part. 8. The learned senior counsel, Mr. Chitranjan Sinha, submitted that the Judgment of the Court below is bad in law and the findings are based on surmises and conjectures. The Court below made out a third case. According to the learned counsel, the plaintiff’s specific case is that Jan Bux sold the property, i.e., his 4 ana share by registered sale deed dated 5.8.1907 in favour of Jamal Hussain and the defendant case is that the loan was taken by Ahmadi from Khairat Hussain and Khairat Hussain in lieu of the loan got the sale deed in the name of his minor son Jamal Hussain. Therefore, there is no denial of execution and registration of the sale deed by Jan Bux in favour of Jamal Hussain. There is no defence also that the aforesaid registered sale deed was never acted upon or no consideration passed. According to the defendants, loan was given by Khairat Hussain but in the sale deed, there is clear recital that loan was taken by Bibi Ahmadi from mother of Jamal Hussain, i.e., first wife of Khairat Hussain. The pleading in the written statement is contrary to the averment made in the registered sale deed of the year 1907. Therefore, the pleading as well as any evidence to that effect is not admissible at all. The pleading in the written statement is contrary to the averment made in the registered sale deed of the year 1907. Therefore, the pleading as well as any evidence to that effect is not admissible at all. Now, therefore, the Court below should have examined the cases pleaded by the defendant as to whether Khairat Hussain is the real owner of the property on the basis of the registered sale deed dated 5.8.1907 or Jamal Hussain was the real owner but instead of finding out this question, the Court below made a third case to the effect that after death of Ahmadi the loan of Rs.990/- should have been paid by all the heirs of Ahmadi, i.e., her husband to the extent of Rs.250/- and remaining amount by son and daughters but for repayment of loan Jan Bux could not have sold his entire share. According to the learned counsel, this is neither pleaded nor there is any evidence adduced by the defendant to show that because Jan Bux had to repay Rs.250/- only but he in lieu of entire loan of Rs.990/- sold the property, i.e., his 4 ana share no title conferred on Jamal Hussain. 9. The learned counsel further submitted that the learned Court below wrongly held that the sale deed dated 5.8.1907 was never acted upon although it is not the defendant’s case and to prove that the sale deed was acted upon, the plaintiff produced the registered gift deed of the year 1971 and the registered sale deed of the year 1960. The Court below did not consider the affect of these sale deeds and held that the sale deed was never acted upon. The further submission is that the sale deed is of the year 1907 wherein the purchaser is Jamal Hussain. If in fact Khairat Hussain was the owner then the defendants should have challenged or claimed for declaration that in fact Khairat Hussain was the owner when they came to know that by execution of the sale deed or the gift deed in the year 1960 or 1971, their interest was affected but they never prayed for any declaration with respect to the property of 4 ana of Jan Bux. In such circumstances unless a declaration is made to the effect that 4 ana share of Jan Bux sold by him to Jamal Hussain is in fact the property of Khairat Hussain and the transaction is benami transaction, no relief should have been granted in favour of the defendant after such a long period, i.e., after expiry of the limitation prescribed by law. In fact the Court below has granted a substantive relief to the defendant without their being any prayer / relief claimed by the defendant with respect to the transaction. The Court below, therefore, wrongly held that by registered sale deed dated 5.8.1907 no title conferred on Jamal Hussain. The learned counsel further submitted that according to the finding of the trial Court that it was never acted upon then Jan Bux remained owner of his 4 ana share, therefore, on his death all 4 ana share will not go to his son Khairat Hussain but it will devolve on his two daughters also but the Court below without considering this aspect held that Khairat Hussain had 6 ana share in the property of Ahmadi and 4 ana share of Jan Bux as such Khairat Husain had got 10 ana share and decreed the plaintiff suit for partition in equal share, i.e., 1/3rd to Jamal 1/3rd to defendant No.1 and 1/3rd to defendant No.2 thereby decreased the share of the plaintiff. According to the plaintiffs, out of 17 bigha and odd the plaintiff is entitled for 6 bigha 9 katha share, i.e., 6 ana whereas according to the decree, the 10 ana share will be divided equally in three parts and thus the share of Jamal be less than 4 bigha. On these grounds, the learned counsel submitted that the impugned Judgment and Decree is liable to be set aside and the plaintiff suit be decreed to the extent claimed in the plaint, i.e., 6 ana share out of the total suit property excluding 16 decimal already sold by Jamal in favour of defendant No.6. 10. On the other hand, the learned counsel appearing on behalf of the respondent submitted that Jamal Hussain was about one year at the time of execution of the sale deed by Jan Bux. 10. On the other hand, the learned counsel appearing on behalf of the respondent submitted that Jamal Hussain was about one year at the time of execution of the sale deed by Jan Bux. Therefore, in fact Khairat Hussain came in possession of the property and continued in possession thereof treating the said lands as joint family property of the parties as such he gifted the property of this 4 ana share along with his 6 ana share in favour of donees by gift deed of the year 1948. According to the learned counsel, the father of defendant No.1 and defendant No.2, namely, Aniruddin and Nehal Hussain pre-deceased Khairat Hussain, therefore, according to Mohammadam Law defendant No.1 and 2 were not entitled to any share. Considering this pitiable condition of these defendant No.1 and 2 along with the son from first wife Jamal Hussain, the gift deed was executed by Khairat Hussain giving equal shares to all the 3 sons as such the gift deed is not related to his 6 ana share only rather entire property of Jan Bux and Khairat Hussain was gifted. Moreover, except Khairat Hussain, no other person was in possession of the property sold by Jan Bux as such Khairt Hussain gifted his entire property in his possession treating the same as the property of all the sons who have got equal share. Therefore, the learned Court below has rightly held if partition is to be done then the entire 10 ana share of Khairat be partitioned according to share of the parties. Out of the share of Jamal Hussain, he has already sold 1 bigha 5 katha which is to be adjusted in the share of the plaintiff. On these grounds, the learned counsel submitted that the Judgment and Decree of the trial Court should not be interfered with. 11. In view of the above rival contentions of the parties, the following points arises for consideration in this First Appeal :— (i) Whether there had been previous partition between the parties or not and whether there is unity of title and possession? 11. In view of the above rival contentions of the parties, the following points arises for consideration in this First Appeal :— (i) Whether there had been previous partition between the parties or not and whether there is unity of title and possession? (ii) Whether the sale deed ext.3 dated 5.8.1907 executed by Jan Bux regarding his 4 ana share in favour of Jamal Hussain is available for partition or it is the property of Jamal Hussain and will devolve on the plaintiff or not and whether the Judgment and Decree passed by the Court below is sustainablen the eye of law or not. 12. Point No. (i) and (ii) :—Since both points are inter connected, both are decided together. According to the plaintiffs, there has been no partition by metes and bounds and the parties are coming in possession of the properties according to their convenience. On the other hand, the defendant’s case is that there had already been partition by metes and bounds between the parties in the year 1945, therefore, the plaintiff’s suit for partition is not maintainable. In support of their respective cases, the parties have adduced evidences. In support of the cases pleaded by the defendant that 10 ana share was the property of Khairat as such according to the share of the plaintiff, partition was affected in the year 1945 and mutation was done. Ext. A series are the rent receipts. The defendants also produced the sale deed ext.’C’ series which are of the year 1962, 1971 etc. These documents have been filed by the defendant to show that in fact there had already been partition and the parties were independently transacting. From perusal of the evidences of the witnesses examined on behalf of the defendant, it appears that the witnesses have stated that treating 10 ana share to be of Khairat, it was divided equally. D.W.1 is defendant No.3 himself who has stated there was partition in the year 1945. D.W.3 has also stated that when partition took place, no paper was prepared. D.W.4 has stated that at the time of partition, the parties were separate in mess. D.W.6 and D.W.7 have stated there was partition in the year 1945. D.W.8 one of the defendant has stated that Jamal Hussain died in the year 1971. He denied execution of sale deed by Jan Bux in favour of Jamal Hussain in the year 1907. D.W.4 has stated that at the time of partition, the parties were separate in mess. D.W.6 and D.W.7 have stated there was partition in the year 1945. D.W.8 one of the defendant has stated that Jamal Hussain died in the year 1971. He denied execution of sale deed by Jan Bux in favour of Jamal Hussain in the year 1907. D.W.13 is purchaser who has only stated that a separate Takhta be allotted in his favour according to his possession in the suit property. These are the oral witnesses produced by the defendant and the documentary evidences in support of the case that there had been previous partition. So far documentary evidences are concerned, it may be mentioned here that those are the sale deeds said to have been executed by the parties but on the basis of the sale deeds, it cannot be said that there had already been partition by metes and bounds, particularly, when it is the case of the plaintiff that the parties were separate coming in possession according to the convenience. So far the mutation papers are concerned, those are not document of title and on the basis of that also, it cannot be said that there had already been partition. 13. It may be further be mentioned here that according to the defendant, the partition was affected with respect to the 10 ana share of Khairat Hussain. The question is if 4 ana share of Jan Bux belong to Jamal Hussain then how could that property would have been partitioned by the parties. Further if the property belonged to Jamal Hussain by partition whether the title of Jamal Hussain will vanish, the answer will be No. Therefore, the most important question is where the property of Jan Bux, i.e., his 4 ana share will go to Khairat or will go to Jamal Hussain. So far this case is concerned according to the plaintiff, ext.3, the sale deed dated 5.8.1907 was executed by Jan Bux in favour of Jamal Hussain. This is the fact which would be evident from ext.3. The defendants respondent’s case is that the sale deed was executed by Jan Bux in lieu of the loan advanced by Khairat Hussain, therefore, Khairat Hussain got the sale deed executed in the name of his minor son Jamal Hussain. This is the fact which would be evident from ext.3. The defendants respondent’s case is that the sale deed was executed by Jan Bux in lieu of the loan advanced by Khairat Hussain, therefore, Khairat Hussain got the sale deed executed in the name of his minor son Jamal Hussain. From perusal of ext.3 which is in Urdu and Hindi version is available on record, it appears that in this ext.3, there is clear recital that Rs.990/- loan was advanced by Bibi Muglan, i.e., mother of Jamal Hussain and first wife Khairat to Bibi Ahmadi. Therefore, Jan Bux is selling his 4 ana share in favour of minor son Jamal Hussain. This document is a registered sale deed. 14. The Hon’ble Supreme Court in the case of Prem Singh Vs. Birbal 2006 (5) SCC 353 and this Court in Sita Saran Prasad 2012 (2) PLJR 190 has held that ‘there is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof thus would be on a person who leads evidence to rebut the presumption’ vide paragraph 28. Now, therefore, when this registered sale deed recites, loan was given by Bibi Muglan to Bibi Ahmadi the oral evidences adduced by the respondent to the effect that loan was advanced by Khairat is inadmissible and thus the pleading to that effect also is contrary to the recital in the registered sale deed which is of the year 1907. In such circumstances unless a declaration is made to the effect that the property sold by Jan Bux by ext.3 belonged to Khairat Hussain, this property cannot be given in favour of the defendant. It may be mentioned here that no such declaration was ever claimed by the defendant. Only it is pleaded and evidence has been adduced to the effect that loan was advanced by Khairat, therefore, he got purchase in the name of Jamal Hussain. In other words, Jamal is benamidar of Khairat. However, this is entirely contrary to the registered sale deed ext.3. 15. The Hon’ble Supreme Court in the case of Md. Noorul Hoda Vs. Only it is pleaded and evidence has been adduced to the effect that loan was advanced by Khairat, therefore, he got purchase in the name of Jamal Hussain. In other words, Jamal is benamidar of Khairat. However, this is entirely contrary to the registered sale deed ext.3. 15. The Hon’ble Supreme Court in the case of Md. Noorul Hoda Vs. Bibi Raifunnisa 1996 (7) SCC 767 has held that ‘when the plaintiff seeks to establish his title to the property which cannot be established without avoiding the decree or an instrument that stands as an insurmountable obstacle in his way which otherwise binds him, though not a party, the plaintiff necessarily has to seek a declaration and have that decree, instrument or contract cancelled or set aside or rescinded.’ Here the defendants are putting their defence and claming share in the property, i.e., 4 ana of Jan Bux sold to Jamal Hussain. No counter claim has been made in the suit also for avoiding the sale deed ext.3. No separate suit has also been filed by them. It is not their case that they had no knowledge about the sale deed or that its contents. Simply it is pleaded that loan was advanced by Khairat Hussain. In such circumstances, merely on the basis of pleading and oral evidence, the statements made in the registered sale deed that also after expiry of limitation cannot be held to be incorrect. 16. Here, it may further be stated that it is not the case of the defendant that the sale deed ext.3 was not acted upon. It is also not their case that by this sale deed, title did not pass to Jamal Hussain. As stated above, their case is that Jamal Hussain is benamidar. So far the case of Benamidar is concerned, it may be mentioned here that the document has been produced from the custody of the plaintiff. The consideration has been mentioned to have given by mother of Jamal Hussain. The vendor Jan Bux who is owner of 4 ana share admitted this fact that loan was advanced by mother of Jamal to Ahmadi. Therefore, he sold the property. During his life time, Jan Bux never challenged the transaction in any way. The consideration has been mentioned to have given by mother of Jamal Hussain. The vendor Jan Bux who is owner of 4 ana share admitted this fact that loan was advanced by mother of Jamal to Ahmadi. Therefore, he sold the property. During his life time, Jan Bux never challenged the transaction in any way. Therefore, the plaintiff has been able to prove custody and has been able to prove payment of consideration and so far the true intention is concerned, it is stated in the registered sale. So far these principles for consideration of benami transaction are in favour of the plaintiff. Although the burden to prove that the transaction as a benami transaction was on the defendant respondent but no such evidence has been produced in support of this benami transaction. 17. The Hon’ble Supreme Court in the case of Bhim Singh Vs. Kan Singh AIR 1980 SC 727 , has held that ‘the principle governing the determination of the question whether a transfer is a benami transaction or not may be summed up thus: (1) The burden of showing that a transfer is a benami transaction lies on the person who asserts that it is such a transaction.’ Here to prove the assertion the defendants only stated that loan was advanced by Khairat Hussain. The other principal have been stated by Hon’ble Supreme Court in the aforesaid decision which are payment of consideration, the intention of the parties, the custody of the title document etc. which are in favour of the plaintiffs. In view of the above position, the case of the defendant that the loan was advanced was Khairat to Bibi Ahmadi is neither reliable nor acceptable. Likewise, the case of the defendant that Khairat Hussain got the sale deed executed in the name of his minor son Jamal Hussain is also not acceptable. 18. In view of my above discussion, I find that the defendants have failed to prove that the sale deed dated 5.8.1907 ext.3 is a benami transaction and the defendants also failed to prove that Khairat advanced the loan to Bibi Ahmadi. In view of these findings, I further find that Jan Bux had sold his 4 ana share to Jamal Hussain by ext.3, therefore, Jamal Hussain was the owner of this 4 ana share of Jan Bux. 19. In view of these findings, I further find that Jan Bux had sold his 4 ana share to Jamal Hussain by ext.3, therefore, Jamal Hussain was the owner of this 4 ana share of Jan Bux. 19. Now, in view of the above findings, there is no question of partitioning this 4 ana share of Jamal Hussain between the 3 sons of Khairat Hussain arises. It is settled principle of law that by mere, admission title will not pass. The property belonged to Jamal Hussain who purchased the same by ext.3. If this property is partitioned, that is, if Jamal Hussain gave any property out of this to anybody then that document must be registered otherwise no title will pass to any person. In such circumstances, so far partition of this property as pleaded by the defendant is not acceptable nor it is legal. Moreover as discussed above, the witnesses have only baldly stated that there had been partition. The documentary evidences produced by the defendants are not sufficient to prove partition by metes and bounds. 20. The next question raised by the defendant respondent that Khairat Hussain was in possession of the property and treated it as joint family is concerned, it may be mentioned that Jamal Hussain was minor. Therefore, treating the property of minor as joint family property will not divest the title of minor from the property and moreover it is the case of the defendant only. It may further be reiterated here that in the gift deed also, i.e., the registered gift deed of the year 1948 executed by Khairat Hussain he has not mentioned the details of lands given to Jamal Hussain and defendant No.1 and 2. He has only mentioned about the share of Jamal Hussain and defendant No.1 and 2 in his property which again indicated that there had been no partition between the parties, therefore, only shares were being transferred by Khairat Hussain. There is nothing on record to show that this property covered by ext.3 was ever treated by anyone as the joint family property or that this property was also gifted by Khairat Hussain. By registered gift deed, Khairat Hussain gifted 2 ana to Jamal, 2 ana to defendant No.1 and 2 ana to defendant No.2. It is admitted case of the parties that Khairat had 6 ana share in the property of Ahmadi after her death. By registered gift deed, Khairat Hussain gifted 2 ana to Jamal, 2 ana to defendant No.1 and 2 ana to defendant No.2. It is admitted case of the parties that Khairat had 6 ana share in the property of Ahmadi after her death. Now, therefore, the presumption is that this 6 ana was given by Khairat by gift deed to his 3 sons, i.e., 1/3rd each which comes to 2 ana each. 21. The next submission of the learned counsel for the respondent that on the death of Jan Bux, Khairat became the owner of 10 ana share has got no force because if according to finding of the trial Court, the ext.3 was not acted upon then also 4 ana share of Jan Bux will not only devolve on Khairat Hussain but also on two daughters of Khairat Hussain. Therefore, the findings of the Court below that 4 ana of Jan Bux went to Khairat is also incorrect. Moreover, it is settled principle of law that the Court cannot make a third case. The Court has to see and find out the case pleaded by the parties. Nowhere the defendants pleaded that the sale deed ext.3 was never acted upon. However, the Court below recorded the finding that this sale deed is not acted upon, it is contrary to the case of the parties and in my opinion, the Court below has made out a third case. The reason assigned by the trial Court is that Jan Bux was liable to pay Rs.250/- only out of the loan advanced to Bibi Ahmadi, therefore, he could not have sold his 4 ana share as such the sale deed did not confer title on Jamal Hussain is neither here nor there. It is not the case of the defendant either pleaded or adduced any evidence to the effect that because of the fact that Jan Bux was liable to pay Rs.250/- only, therefore, the sale deed was not acted upon or no title passed. The only pleading is that loan was advanced by Khairat. Further, it may be mentioned that for inadequacy of the consideration amount the transaction cannot be said to be void document, particularly when as stated above Jan Bux never challenged the transaction on the basis of inadequacy of consideration. The only pleading is that loan was advanced by Khairat. Further, it may be mentioned that for inadequacy of the consideration amount the transaction cannot be said to be void document, particularly when as stated above Jan Bux never challenged the transaction on the basis of inadequacy of consideration. There is no bar in payment of total consideration amount by Jan Bux only although others were also liable to pay the remaining loan advanced by Bibi Muglan. Therefore, here also the learned trial Court wrongly assigned these reasons for holding that the sale deed was never acted upon. I, therefore, find that the sale deed was acted upon and therefore, the property, i.e., 4 ana share of Jan Bux devolved on Jamal Hussain. Khairat Hussain had executed gift deed in the year 1948 with respect to his property giving 1/3rd share to Jamal. Now, therefore, Jamal Hussain got 4 ana share of Jan Bux and 2 ana share of Khairat = 6 ana share in total. Out of that he has already sold 6 katha to defendant No.6. That property is only to be excluded or may be adjusted in the share of the plaintiffs. 22. In view of the above discussion, I ultimately find that there had been no previous partition by metes and bounds. Accordingly, finding of the trial Court is hereby confirmed on this question. I further find that the sale deed ext.3 was acted upon as such 4 ana share of Jan Bux devolve on Jamal Hussain as such the same belonged to the plaintiffs branch. The Judgment and Decree of the trial Court is, therefore, set aside to this extent only. In other words, the plaintiffs are entitled exclusively the share covered by ext.3 and are entitled for partition of their 2 ana share in the property covered under registered gift deed. Thus, the plaintiffs are entitled to 4 ana share of Jan Bux and 2 ana share of Khairat. The Judgment and Decree of the trial Court is thus liable to be modified to this extent. 23. In the result, this Appeal is allowed. The Judgment and Decree of the trial Court is modified to the extent indicted above. The plaintiffs suit is decreed in toto. In the facts and circumstances of the case, there shall be no order as to cost. ?