FIRST APPEAL No.210 OF 1976 Against the judgment and decree dated 24.01.1976 passed by Shri Mohan Prasad, the learned Subordinate Judge-Ist, Munger in Title Suit No. 35 of 1974 dismissing the plaintiffs suit for partition. MD. HUSSAINI & ORS-------------------------------------------(Appellant) Versus MOST.BIBI AMNA KHATOON & ORS-------------------------------(Respondents) For the appellants: Mr. Raghib Ahsan, Sr. Advocate Mr. Md. Abu Haidar Smt. Jahan Ara For the Respondents: Mr. Abdul Mannan Khan Mr. Naresh Kumar Sinha P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO Mungeshwar Sahoo,J. This appeal has been filed by the plaintiffs against the judgment and decree dated 24.01.1976 passed by Shri Mohan Prasad, the learned Subordinate Judge-Ist, Munger in Title Suit No. 35 of 1974 dismissing the plaintiffs suit for partition. 2. The plaintiffs/appellants filed the aforesaid title suit claiming partition with respect to three houses and 10 Kathas of Parti lands described in Schedule-II of the plaint. The plaintiffs’ claimed five Annas 10 paise share. 3. The plaintiffs’ case in short is that the suit property belonged to Sheikh Ali Hassan. He had two wives. From first wife, Bibi Sairan, he had one son, namely, Sheikh Ghasit and one daughter, Bibi Azizan. From second wife, 2 Bibi Naiki, he had two sons; Sheikh Hamid and Sheikh Rasid. The widow of Sheikh Ghasit, namely, Amna Khatoon is defendant No. 1. The sons and daughters of Bibi Azizan are the plaintiffs. The widow and children of Sheikh Hamid are defendant Nos. 2 to 7 and the widow and sons and daughters of Sheikh Rasid are defendant Nos. 8 to 12. The property of Sheikh Ali Hassan is joint. Hence, the suit for partition. 4. The defendant No. 1, Bibi Amna Khatoon appeared and filed a contesting written statement. Defendant Nos. 13 & 14 who are purchasers of the properties have also appeared and filed a contesting written statement. The defence of both set of defendants is in the same line. According to them, Bibi Azizan, mother of the plaintiff died during the lifetime of her mother, Bibi Sairan, the first wife of Ali Hassan. On the death of Sheikh Ghasit, the defendant No. 1 being his widow came in possession of the properties. The main defence is that the property mentioned in schedule-II, item Nos. 1 & 2 never belonged to Sheikh Ali Hassan and, therefore, there is no question of unity of title and possession over item Nos. I & II of Schedule-II property. So far item Nos. I & II is concerned, it was auction sold in Certificate Case No. 261 of 1948-49 which was filed against the recorded tenant, Md. Yaqub Hussaini. Prasadi Mandal purchased the item No. 1 property 3 in the auction and took possession through the court. Subsequently, he sold the item No. 1 property to Sheikh Hasibul Rahman by registered sale deed dated 09.12.1949 who in turn sold the said property to the defendants (IInd set) on 15.04.1954. Thereafter, the purchasers have been mutated. The purchasers have also constructed double storeyed pucca house. 5. So far item No. II of schedule-2 property is concerned; the case of the defendants was that the same property was also sold in Khasmahal Certificate Case No. 261/1948-49. The said case was instituted against the recorded tenant Md. Waris, Yaqub Hussaini. The said Prasadi Mandal had purchased item No.II and took delivery of possession through the court. Thereafter, he again soled to Hasibul Rahman on 09.12.1949 who in turn sold the property to defendant No. 1 on 15.04.1950 and since then, defendant No. 1, Amna Khatoon is coming in possession. As such, it is exclusive property of Amna Khatoon. 6. So far item No. III is concerned, it is stated that it was the self-acquired property of Sheikh Ghasit. He acquired the same in 1944 from Munger Municipality and since then, he is in exclusive possession. After his death, Amna Khatoon got partitioned her 1/4th share and the other 3/4th share went to the defendant Nos. 2 & 3. The mother of the plaintiffs pre-deceased, Bibi Sairan and, therefore, the 4 plaintiffs have got no share. The defendant No. 1 got the said property partitioned by registered partition deed dated 10.07.1992. Subsequently, she was in need of money, as such, she sold the said 4 Annas share to the defendants (IInd set) on 12.04.1973 & 17.09.1973. 7. So far item No. IV of schedule-II of the plaint is concerned; the case of the defendants was that the said property belonged to Ali Hassan. The said Ali Hassan gave the item No.IV property to his first wife, Bibi Sairan in lieu of dower debt and Bibi Sairan came in possession till her death. After her death, the property devolved upon the three sons of said Ali Hassan, namely, Sheikh Ghasit and Sheikh Hamid, Sheikh Rasid because Bibi Azizan, the mother of the plaintiff has already died. Therefore, the plaintiffs have got no share. 8. On the pleadings of the parties, the learned court below framed as many as 9 issues. After trial, the learned court below came to the conclusion that mother of the plaintiff pre-deceased, Bibi Sairan. The learned court below also found that item No.-I , II & III of schedule-II property was not the property of Ali Hassan. The learned court below also found that item No.4 was the only property of Ali Hassan who had given the said property in lieu of dower debt to Bibi Sairan. But since the mother of the plaintiffs, namely, Bibi Azizan pre-deceased her mother, 5 namely, Bibi Sairan, the plaintiffs have got no share and accordingly, the plaintiffs’ suit has been dismissed. 9. The learned counsel for the appellants submitted that the learned court below has wrongly appreciated the evidence and came to the conclusion that the property mentioned in item No.1 to 3 are not the property of Ali Hassan. The learned counsel further submitted that the finding of the learned court below regarding the death of Bibi Azizan is wrong as Bibi Azizan never pre-deceased her mother. The learned counsel further submitted that so far item No. 4 property mentioned in schedule-II is concerned; admittedly, it was the property of Ali Hassan. The case of the plaintiff is that it was given in dower debt to Bibi Sairan but no registered document has ben filed by the plaintiff. Therefore, title will not pass to the plaintiffs because the valuation of the property must be more than Rs 100/-. 10. On the otherhand, the learned counsels for the respondents who were defendant Nos. 13 & 14 i.e. purchasers submitted that there is no illegality in the impugned judgment and decree and, therefore, the appeal is liable to be dismissed. 11. In view of the above contentions of the parties, the points arise for consideration are as to whether the plaintiffs are entitled to any share in the suit property and whether the judgment and decree of the court below is 6 correct? 12. Now let us consider the properties item-wise. According to the plaintiffs case, item No. 1 was also the property of Ali Hassan. This item No. 1 is in holding No. 213 Municipal Khesera No. 1511, measuring 26 decimals. The plaintiffs have filed Ext-2, the certified copy of Municipal Khesera to prove the fact that the said property belonged to Ali Hassan. From perusal of the said Ext.-2, it appears that the name of Ali Hassan Butcher is in the column of occupier. The actual recorded tenants are Saiyad Sharafat Hussain & others who were the owners of the suit property. Except this Ext-2, no other evidence has been brought showing ownership of Ali Hassan. Therefore, on the basis of Ext-2, in which only possession of Ali Hassan has been recorded, it cannot be said that the said item No. 1 belonged to Ali Hassan. 13. Likewise, item No. 2 is Municipal Plot No. 1510 measuring 60 decimals. This property is also covered by Ext-2. The defendants have produced Ext-M which is certified copy of register-19B to show that the entire land of Khata No. 58 were auction sold in Khasmahal Certificate Case No. 261 of 1948-49. Prasadi Mandal had purchased the same on 07.03.1949. From perusal of Ext-F/1 and F/21, the registered sale deeds, it appears that Shah Fasiul Rahman sold plot No. 31/85 of Khata No. 58 to the 7 defendant No. 1 and to defendant No. 13 & 14. In these sale deeds, there is recital that the plots of Khata No. 58 have been sold in Certificate Case No. 261 of 1948-49. Prasadi Mandal purchased the same and sold it to Shah Fasiul Rahman. Sah Fasiul Rahman in turn, sold the same to Bibi Amna Khatoon, Ainul and Jainul. It further appears that the said Certificate Case was filed against the recorded tenant, Md. Waris and Md. Yaqub. 14. From perusal of Ext-F/3, it appears that Amna Khatoon sold 9 Dhurs out of her purchased land to the defendant Nos. 13 & 14 through registered sale deed Ext- F/3. Therefore, it appears that the item No. 1 & 2 of schedule-II bearing Municipal Khesera No. 1511 & 1510 respectively were sold substantially to the defendants No. 13 & 14 through the registered sale deeds. 15. From the above discussion, it appears that the plaintiffs failed to prove that these lands as mentioned in detail in item Nos. 1 & 2 of schedule-II belonged to Ali Hassan. Therefore, the findings of the learned court below on this point, is confirmed. 16. So far item No. 3 of schedule-II is concerned, according to the plaintiffs, the said property was acquired by the husband of the defendant No. 1 , namely, Sheikh Ghasit from Municipality in 1944. It is the case of the plaintiffs that after the death of Sheikh Ghasit, the property was 8 partitioned by registered partition deed. The defendants have proved the said partition deed which has been marked as Ext-G. From perusal of the same, it appears that in the said partition, Bibi Amna Khatoon, the defendant No. 1 was allotted her 1/4th share and she by registered sale deed Ext- F sold the said land to defendant Nos. 13 & 14. From perusal of Ext-L which is departmental Survey Khesera of Munger Municipality, the land of item No. 3 appears to have been given to Ghasit Mian in exchange. This case of the defendants has also been supported by D.W. 10 and D.W. 7. The D.W. 7 has stated that the land of Ghasit Mian was acquired for construction of road and in lieu thereof, was given the land in exchange. From the above facts, it is clear that the land was self-acquired property of Sheikh Ghasit. After his death, on partition, the defendant No. 1 got her 1/4th share separated by Ext-G and thereafter, she sold by registered sale deed Ext-F in favour of defendant Nos. 13 & 14. In view of the above discussion, it appears that the plaintiffs have also failed to prove the fact that item No. 3 of schedule II belonged to Ali Hassan. It appears that it was the property of Sheikh Ghasit. The finding of the learned court below, therefore, on this point is confirmed. 17. So far item No. 4 of schedule II property is concerned, the Parti land involved is 10 Kathas in Munger town. According to the plaintiffs, the said property was given 9 by Ali Hassan in lieu of dower debt to his wife , Bibi Sairan. The defendants admitted the fact that the properties belonged to Sheikh Ali Hassan. The learned court below found at Paragraph-26 that the defendants have also not specifically stated in their evidence regarding this fact that this land was given to Bibi Sairan in lieu of her dower debt. There is no evidence in support of this fact that the property was given in lieu of dower debt by Ali Hassan to Bibi Sairan pleading is not the proof of fact pleaded. If that is the position, then so far this property is concerned, the question arises for consideration is as to whether Bibi Azizan pre- deceased her father. It is not the case of the parties that Bibi Azizan died prior to her father. It is admitted fact that Ali Hassan died much earlier. Therefore, on the death of Ali Hassan, the daughter Bibi Azizan will inherit 1/7th share and the three sons will inherit 2/7th each in item No. 4 because on the death of Ali, the right to inherit will arise and not on the death of Bibi Sairan. Now let us examine the other aspects of the matter. The defendants have claimed that the property was given in lieu of dower debt. The property measures 10 Kathas and it was in the town of Munger. It cannot be said that the valuation of the property was less than Rs 100/- It is also admitted case of the parties that there is no registered deed executed transferring the land in lieu of dower debt. In a decision reported in AIR 1978 Pat 10 197 (The Commissioner of Income Tax Bihar vs. Saeed Sadique), the Full Bench of this court has held that a gift in lieu of dower debt is not a true hiba-bil-ewaz, but really a sale and has to be by registered instrument as required under section 54 of the Transfer of Property Act, if the immovable properties transferred is valued more than Rs 100/- In view of the above settled principles of law, even if it is held that the property was given in dower debt, then also title will not pass to Bibi Sairan because it is not the case of the defendant that because the value was less than Rs 100/- therefore, no deed was executed. Therefore, when title will not pass to Bibi Sairan, the title will remain with Ali Hassan on the death of Ali Hassan, the daughter, Bibi Azizan will inherit 1/7th share in item No. 4. Therefore, in either way, the plaintiffs are entitled to 1/7th share in item No. 4 of schedule-II. In such circumstances, it is irrelevant to decide the question as to whether Bibi Azizan pre deceased mother, Bibi Sarain or not. 18. However, from perusal of the evidences, it appears that both the parties have adduced evidences on this point. Ext-K is the death register of Munger Municipality from which it appears that the wife of Ali Hassan, namely, Bibi Sairan died on 05.02.1962. The other document Ext-H/1 is the petition filed by father of plaintiff before Khasmahal Officer, Munger in Mutation Case No. 38/1969-70 whichj 11 was objection petition in which it is mentioned that wife of Ali Hassan died in 1962. Therefore, the father of the plaintiff admitted the fact that Bibi Sairan died in 1962. The defendants have also proved Ext-H certified copy of amendment petition in Mortgage Execution Case No. 225 of 1959 and in that amendment petition, it is mentioned that Bibi Azizan died on 02.09.1960 leaving behind her husband, Md. Gaffoor and the plaintiff and, therefore, it was prayed that the name of Md. Azizan be expunged and in her place, her heirs be substituted. Although P.W.7 has been examined by the plaintiff to say that his mother died after Bibi Sairan. His evidence is not reliable in face of the documentary evidence adduced by the defendants. It may be mentioned here that except the plaintiff (P.W.7) no other evidence has been produced. Therefore, I find that Bibi Azizan died in 1960 whereas Bibi Sairan died in 1962. Therefore, on this point also the finding of the learned court below is confirmed. 19. In view of the above findings, so far item No. 3 is concerned, because it was the property of Sheikh Ghasit who died in 1968, on his death, the property devolved upon Amina Khatoon, defendant No. 1 and the other as stated by the defendants and not on the plaintiffs. Further in view of the above findings, the plaintiffs have failed to prove their unity of title and possession over item 12 Patna High Court Dated the 5th day of May, 2010 AKV/AFR Nos. 1, 2 & 3 of schedule-II property. So far item No. 4 is concerned, in view of my above finding, even if it is held that Bibi Azizan died in 1962, she is entitled to 1/7th share because right to inherit accrued on the death of Ali Hassan. She will inherit 1/2 of her each brother. The learned court below has not considered this aspect of the matter. The learned court below has also not considered the settled law as laid down by this court in Full Bench reported in AIR 1978 Pat 197 that without execution of registered deed, the property valued more than Rs 100/- cannot be given in lieu of dower debt. Therefore, the findings of the learned court below regarding item No. 4 of schedule-II property is hereby set aside. It is held that the plaintiffs/appellants are entitled to the decree to the extent of 1/7th share in item No. 4 of schedule-II property. 19. In the result, this appeal is allowed in part and the plaintiffs/appellants suit is decreed to the extent indicated above, i.e. the plaintiffs’ suit is decreed only to the extent of 1/7th share in item No. 4 of schedule-II of the plaint. In the facts and circumstances of the case, there shall be no orders as to costs. (Mungeshwar Sahoo,J.)