- (1.) S. P. Srivastava, J. Feeling aggrieved by a preliminary decree passed against him in a suit for partition of the house in dispute holding the share of the plaintiff therein to be 2/9th and further directing the defendants to furnish the account in respect of the rental income received by them from the aforesaid property to the plaintiff, the contesting defendants filed a first appeal which has been dismissed by the lower appellate court. One of the defendants, Mohammad Naseem has now come up in second appeal before this court seeking the setting aside of the impugned decree and praying that the suit be dismissed.
(2.) THE facts in brief shorn of details and necessary for the disposal of this appeal lie in a narrow compass. Mohammad Gufran, the plaintiff had filed the suit giving rise to this appeal for the partition of the house in dispute seeking the separation of his 2/9th share therein putting forward a claim that the house in dispute initially belonged to Mohammad Saddiq who had three sons viz. Mohammad Naushe, Mohammad Naseem and Mohammad Saleem. Besides the three sons he had three daughters Smt. Baharunnisha, Gulzar Begum and Gulnar Begum. According to the plaintiff Mohammad Saddiq on his death was survived by the aforesaid five heirs and consequently the share of Mohammad Naushe under the Mohammadan Law came to be 2/9th which was transferred by him through the sale-deed dated 1- 5-1969 which was duly registered. It was claimed that the defendants No. 6, 7 and 8 were occupying the portion of the house in dispute as tenants and were paying rent of defendant No. 1 Mohammad Naseem, who had not given any account of the rent received by him nor paid the same to the plaintiff. It was in these circumstances that besides seeking separation of the 2/9th share by partitioning the property by metes and bounds the plaintiff also sought for the accounting of the rent realising by the defendant No. 1. The aforesaid suit was contested by the defendants No. 1 to 5, that is, Mohammad Naseem, Mohammad Saleem and the three daughters of Mohammad Saddiq, referred to hereinbefore alleging that the plaintiff had no right, title or interest in the property in dispute. The contesting defendants claimed that Mohammad Naushe was not the son of Mohammad Saddiq and further the sale-deed relied upon was forged and fictitious and without any right. It was also claimed that Mohammad Saddiq had not left any property at the time of his death as during his life-time he had bequeathed all his property in favour of defendants No. 1 to 5. The trial court came to the. conclusion that Mohammad Naushe was in fact the son of Mohammad Saddiq and the claim of the defendants in this regard was disbelieved. The trial court also found that Mohammad Saddiq had executed a Will on 6-5-1966 which was a registered document proved by Mohammad Naseem and Mohammad Naeem examined as DW 1 and DW 2 but this "will" bequeathing the entire house in suit in favour of Naseem and Saleem could not affect the right of the plaintiff inasmuch as the Will could not vest the legatees with any right in excess of l/3rd share of the owner under the Mohammadan Law and since Mohammad Naushe had not consented to the bequest in favour of Mohammad Naseem and Mohammad Saleem, his share to the extent of 2/9th could not be deemed to have been affected in any manner by the said Will. The trial court further found that Mohd. Naushe had 2/9th share in the house in dispute which had been purchased by the plaintiffs. On the above findings, the trial court decreed the suit.
(3.) IT appears that the two sons of Mohammad Saddiq and his three daughters challenged the decree of the trial court before the first appellate court. During the pendency of the appeal, certain issues were remitted for finding before the trial court. The findings were returned by the trial court on 30th March, 1989 whereunder it was found that Mohammad Saddiq had died on 10th May, 1969. IT was also found that apart from the house in dispute Mohammad Saddiq had many other properties apart from the property in suit the details whereof has been furnished in the certified copy of the decree passed in original suit No. 30 of 1994 which was on the record. Before the first appellate court, the contesting defendants appear to have given up their plea in regard to the parentage of Mohammad Naushe and admitted that he was in fact the son of Mohammad Saddiq. It is therefore, obvious that the correctness of the finding of the trial court holding that Mohammad Naushe was the son of Mohammad Saddiq was not disputed before the first appellate court. It appears that before the appellate court, it was urged that since the sale-deed relied upon by the plaintiff had been executed on 1-5-1969 that is much before the death of Mohammad Saddiq which occurred on 10-5-1969, the rights in the property in dispute could not be deemed to have been vested in the transferee through the aforesaid sale-deed which had to be treated as without jurisdiction. The appellate court, however found that Mohammad Saddiq had executed the Will on 6-5-1966 and the sale-deed had been executed by Mohammad Naushe in favour of Mohammad Gufran on 1-5-1969, and Mohammad Saddiq died on 10-5- 1969. The first appellate court was of the view that it was clearly a case of feeding the grant of the Transfer of Property Act in favour of the plaintiff. In this view of the matter the appellate court did riot give any importance to the date of sale and the date of death as in its view these dates had lost all the significance in the peculiar facts and circumstances of the case inasmuch as on the death the transferor stood vested with 2/9th share in the property in dispute by way of inheritance which fact was not disputed.;