Asit Kumar Bisi, J. - (1.) The instant appeal preferred by the appellants is directed against the judgment and preliminary decree passed by Sri P.R. Sinha Sarkar the learned Subordinate Judge, Malda on 30.4.82 in partition suit No. 53 of 1971. The suit for partition out of which the present appeal has arisen has been instituted by the plaintiffs presently the respondents for effecting partition of the suit properties alleging that the plaintiffs and the defendants are co-sharers of the same.
(2.) Briefly stated that the case of the plaintiffs is that the suit properties are the ancestral properties which originally belonged to Haji Liakat Momin who owned and possessed the same. The said Haji Liakat Momin had three wives. Borania Bewa was his first wife. Joynab Bewa and Soraban Bewa were his second wife and third wife respectively. Haji Liakat Momin had three sons and two daughters by his first wife Borania and the names of the said three sons are Darab Ali Momin, Touhid Ali Momin and Murshed Ali Momin. Jalian Bewa and Zinnat Bibi are the said two daughters. Darab Ali Momin predeceased Haji Liakat Momin. He died leaving behind his two wives, a son and four daughters. Borania Bewa died during the lifetime of Haji Liakat Momin leaving behind the sons, the daughters, the son's sons and the son's daughters. Haji Liakat Momin lived together with his second wife Joynab and all the sons and daughters of his first wife in the same mess. After 5/6 years of his marriage with Jainab. Haji Liakat Momin married Soraban Bibi who was his third wife. At the time of the marriage Soraban Bibi was aged 15/16 years and Haji Liakat Momin was aged 56/57 years. Haji Liakat Momin had three sons and a daughter by his second wife Jainab and the said sons are Mafijuddin, Safijuddin and Hafijuddin and the name of the daughter is Afjan. Four sons Md. Jalaluddin, Md. Faijuddin, Sahabuddin and Ashimuddin and two daughters Bibi Khasbunnessa and Bibi Samuuunnessa were born of the third wife Soraban Bibi and Haji Liakat Momin.
(3.) After death of Haji Liakat Momin the suit properties develoved upon his nine sons Tauhid, Murshed, Mafijuddin, Safijuddin, Hafijuddin, Jalaluddin, Aijuddin, Sahabuddin and Ashimuddin and five daughters Jalian Bibi, Zinnat Bibi, Afajan Bibi, Khushbannessa and Samsunnessa Bibi and two windows Jainab and Soraban. Haji Liakat Momin died at the age of 90/95 years. After his marriage with his third wife Soraban he was completely under the care and control of Soraban and had no ability to do anything of his own accord. He was fully dependent upon his third wife Soraban and her sons. Soraban and her sons fully dominated the Will of Haji Liakat Momin. They exercised undue influence upon Haji Liakat Momin and got various deeds executed by the latter in respect of the suit properties in their favour. One or two deeds were registered in the names of other sons, the sons's son and second wife in respect of lesser quantity of lands. In fact all the aforesaid deeds were executed under undue influence and such sale deeds have no legal effect or force and are not enforceable against the plaintiffs. The alleged transferees did not acquire any right, title, interest or possession in respect of the properties. Haji Liakat Momin possessed the entire properties till his death. He died on 13.1.67. The plaintiffs have shares in the suit properties. They have been possessing the suit properties jointly with the defendants after the death of Haji Liakat Momin. Due to inconvenience in the joint possession the plaintiffs asked the defendants to make partition of the suit properties on 12.8.70 but the defendants have not partitioned the suit properties.;