- (1.) HEARD Sri H.M Srivastava, learned counsel for the appellant and Chaudhary Subhash Kr. Srivastava, learned counsel for the respondent. This is defendant's appeal against the preliminary decree passed in suit for partition, namely, Original Suit No. 328 of 1990 (Smt. Mahmood Fatima vs. Smt. Shamim Fatima). The suit for partition filed by the plaintiff was decreed on 24.11.1991. The preliminary decree dated 24.11.1991 was challenged in appeal. The lower appellate court dismissed the appeal by the judgment and order dated 14.07.1995.
(2.) AT the time of admission of present second appeal, this court passed the following order:- "Heard Sri K. C. Saxena, learned counsel for the defendant-appellant. A suit for partition was filed by the plaintiff-respondent on the basis of the Will alleged to have been executed by one Shahabuddin, who happens to be the father of the parties. The Will made a provision that the property would first go to his wife Smt. Ayesha Begum. Thereafter it will go to the legatees. The learned counsel for the defendant-appellant urged that both the courts below went wrong in applying the provisions of Mohamdan Law with regard to Will. A fine point of controversy has been raised in this appeal which requires scrutiny by this court. Issue notice to the plaintiff-respondent. Call for the record of the courts below. List this case for hearing in the week commencing 25th May, 1998. The two applications moved on behalf of the defendant-appellant shall remain pending on which the order shall be passed after hearing the respondent." Brief facts of the case giving rise to the controversy are as follows:- The plaintiff respondent filed a suit for partition of her share in the dwelling unit belonging to her father Mohd. Shahabuddin who died in the year 1969. The dwelling unit House N0. 51, Mohalla- Shyam Nagar, Kasba-Orai, District- Jalaun is the subject matter of suit property. Mohd Shahabuddin, father of plaintiff and the respondent executed a will dated 23.06.1964 in respect of suit property, according to which the suit property was devolved upon his wife Aiyesha Begum and after her death upon his two daughters namely, plaintiff and the defendant. Mother of plaintiff and the respondent Smt Aiyesha Begum died in the year 1973. The plaintiff claimed her 1/2 share in the suit property stating therein that despite efforts made by her, the defendant did not agree for partition of the dwelling unit and as such she was constrained to file the suit. The suit was decreed for half share of the plaintiff as well as the respondent. The appeal was dismissed and preliminary decree of partition was affirmed. The plaintiff Smt. Mahmood Fatima pursuant to the dismissal of the appeal by judgment and order dated 14.07.1995 filed Misc. Case No. 87 of 1995 on 28.08.1995 for preparation of final decree. The defendant appellant filed her objection offering her readiness and willingness to purchase the share of plaintiff Smt. Mahmood Fatima under section 4 of the Partition Act 1893 read with Section 44 of the Transfer of Property Act, 1882. The application filed on 07.09.1996 and Misc. Case No. 102 of 1996 was registered.
(3.) DURING pendency of the said application and the present second appeal, the plaintiff transferred her half share in the suit property by way of registered sale deed dated 06.04.1998 in favour of one Sharif Ahmad. Sharif Ahmad moved an application for his impleadment in Misc. Case No. 87 of 1995. The appellant filed objection to the impleadment application. The impleadment application was allowed by order dated 12.07.2004 passed by Civil Judge (Senior Division), Orai. The application under Section 47 C.P.C. registered as Misc. Case No. 102 of 1996 filed by the defendant appellant was rejected by the court below by order dated 13.8.2008 on the ground that the Misc. Case No. 87 of 1995 has been filed by the plaintiff for preparation of final decree on the basis of preliminary decree dated 24.12.1991. As the final decree had not been prepared at the time of filing of objection under Section 47 C.P.C., the same was found premature and was rejected as such.;