DULI BIBI AND Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THIS appeal is by the plaintiffs against the judgment and decree passed in Title Appeal No. 27 of 1966 by the additional District Judge, Second court, Burdwan affirming the judgment and decree passed in Title Suit No. 149 of 1964 by the Munsif, Kalna.

(2.) THE only question that requires to be decided in this appeal is whether the Hebanama executed by a person governed by the Mohammedan Law which does not require any writing and registration requires to be registered under the provisions of the Bengal tenancy Act. The facts of the case in a nutshell is that the suit properly originally belonged to one saharddi Mondal who died leaving behind him his widow, five sons and three daughters. The plaintiffs 1 to 5 are his sons, plaintiff No. 6 is his widbw and plaintiffs 7 to 9 are the three daughters. In Baisakh, 1346 B. S. Saharddi Mondal made an oral gift of the properties described in Schedules e to H in favour of the plaintiff Nos. 6 to 9 and also delivered possession thereof to the donees and since then the plaintiff Nos. 6 to 9 are in exclusive possession of the properties. Saharddi Mondal died in 1369 B. S. after the date of vesting but he did not submit any return in respect of the lands owned by him. The plaintiffs, however, submitted return of the lands in schedule A to D and surrendered the lands described in Schedule (A1 ). In the circumstances the properties in schedule E to H cannot vest in the state. A notice under Section 10 (2)of the West Bengal Estates acquisition Act had been served on the plaintiffs. Hence the plaintiffs brought an action being Title Suit No. 149 of 1964 praying for declaration of their title to the suit land in schedule A to H of the plaint and for permanent junction restraining the defendants, State of west Bengal from interfering with their title and possession of the disputed lands.

(3.) THE trial court held that the story of oral Heba in favour of the plaintiffs 6 to 9 had not been proved. He also found that Saharddi Mondal was in possession of the said property. It was also held that the lands described in Schedule (A1) and E to H were in excess of the ceiling prescribed by the Act and the same being not retained vested in the State. The suit was, accordingly, decreed only with respect to lands in Schedules A to D.