- (1.) Md. Murad Ali (hereinafter called as plaintiff) filed Partition Suit No. 35/74 in the Court of 1st Addl. Sub-Judge, Hazaribagh, seeking a decree for partition of his 1/4th share in the property of Hazi Hunshi Naziruddin described in Schedule 'A' at the foot of the plaint and for carving out a separate Takhata of his 1/4th share. The suit was decreed on 29.7.1977 by the trial Court and the preliminary decree was accordingly prepared. Being aggrieved thereby, the defendant, Abdul Manan (hereinafter called as defendant-appellant) filed a First Appeal No. 224/77-R before this Court. During the pendency of the said appeal, final decree was also prepared against which another First Appeal No. 35/87-R was filed by the defendant-appellant, vide Judgment, dated 22.5.1989, the learned single Judge dismissed the F. A. No. 223/ 1977 filed against the preliminary decree. However, F. A. No. 35/87-R filed against the final decree was allowed and the trial Court was directed to prepare the final decree afresh in accordance with law, keeping in view the observations made in the judgment. The defendant-appellant, being dissatisfied with the judgment of the learned single Judge, has filed this appeal under Clause 10 of the Letters Patent.
(2.) The plaintiff filed the suit with the allegations, inter alia, that Hazi Munshi Naziruddin had two wives, Bibi Alimen @ Bibi Kolsum and Bibi Saira: that Bibi Alimen died in 1947 and Hazi Munshi Naziruddin also died in 1960 leaving no issue from any wife; that before his death Naziruddin executed a hinhayati-deed dated 8.8.1958 in favour of his wife Bibi Saira giving his property to her till her lifetime with the right to remain in its exclusive possession and to manage and protect it and to get her name mutated as such in the revenue record with the condition that she will pay all the Municipal and other taxes in respect of the property and will also remit a sum of Rs. 20/- every year out of the income from property as an offering to Hazrat Sah Maulana Amanullah Saheb at Phulwari Shariff, District Patna. It was also provided in the said deed that after her death, the entire property would devolve upon his nephew namely Abdul Manan (defendant-appellant). Bibi Saira died in 1972. Hence, the suit for partition by the plaintiff. The plaintiff's claim is that he along with defendant No. 6 are entitled to 1/4th share in the suit property by virtue of being heir of Bibi Saira who was the widow of Naziruddin who died issueless. The plaintiff's further claim is that as the defendant No. 6, by agreement dated 22.11.1973, had transferred his right, title and interest in his favour, he is entitled to 1/4th share in the suit property.
(3.) The case of the defendant-appellant, who is nephew of Naziruddin is that by hinhayati-deed executed in 1958, Bibi Saira was given the right as regards usufruct of the said property till her life and after her death, the whole property has devolved upon him. Relying upon the clause 8 of the said hinhayati-deed, which is reproduced below, the defendant-appellant claimed that the whole of the property had been gifted by Naziruddin to him. Therefore, Bibi Saira and after her death, the plaintiff and the defendant No. 6 are not entitled to any share in the said property: "8. That after the death of the executor (Mokarraridar), the life interest given to her in the property will cease to have any effect and her present heirs or any in future will not have any kind of right, title or interest in the property aforesaid. Thereafter, the entire property aforesaid will devolve upon the executee's nephew namely, Abdul Manan Salamhu or to the latter's heirs.;