HOSSAIN BIBI Vs. ENAYATULLA KHAN
LAWS(CAL)-1976-7-35
HIGH COURT OF CALCUTTA
Decided on July 09,1976

Hossain Bibi Appellant
VERSUS
Enayatulla Khan Respondents




JUDGEMENT

P.K. Banerjee, J. - (1.)This appeal at the instance of the Defendant -Appellant arose out of a suit by the Plaintiff for partition. The Plaintiff and the Defendant No. 1, since deceased, were two brothers and the Defendant No. 1 was the elder brother of the Plaintiff. It is alleged that they used to carry on business in dry fruits jointly and used to mess together and formed a joint family and had a joint common fund, ejmali, which was to be kept with the Defendant No. 1 being the eldest of the brothers. On December 16, 1927, with the above joint fund, the property at 25 Ekbalpore Lane was purchased by both the two brothers in the name of the elder brother, the Defendant No. 1, as the Plaintiff had ample confidence and faith in him. It is stated that) thereafter on the joint effort and with the income of the ejmali business, construction was effected on the said premises and it became thus the joint property of the two brothers, the Plaintiff and the Defendant No. 1 and this property mentioned in Schedule 'A' formed one of the subjects of the present suit and was liable to be partitioned. It is further stated that the Plaintiff feeling inconvenience in the joint mess and joint dwelling accommodation in the above premises removed to a separate house and had been getting a share of the income from the Defendant No. 1, out of the income of the property in Schedule 'A', but the major portion of the income of the suit property by common consent was kept with Defendant No. 1 for acquisition of other properties and with the said income, the properties mentioned in Schedule 'B' were subsequently acquired gradually from the said accumulation but in the name of the Defendant No. 1. The Defendant No. 1 since deceased, stopped paying any money out of the income of the suit properties and being pressed for that expressed that he had been forced to make some benami documents in favour of his wife and daughter and that they were claiming the properties on the basis thereof, for which he was not in a position to give the Plaintiff his due share of the usufructs. The Plaintiff was very much surprised at the above statement of the elder brother and made searches from the registry office and other quarters and came to learn that out of fraudulent motive, he had created certain deeds in favour of his wife and daughter and daughter's son and daughter regarding the suit properties. It is alleged that the aforesaid deeds are all benami, fraudulent and collusive and sham and paper transactions and without consideration and the right, title and interest that the Plaintiff has got in all those properties are not at all affected and those are by no means binding upon the Plaintiff. It is alleged that the Plaintiff has got an indefeasible right in the suit properties to the extent of 8 annas share and he is entitled to get a decree for partition by metes and bounds even if the Court finds that the transactions are valid. During the pendency of the suit the Defendant No. 1 Ahmed Shah Khan died. It is alleged that the Plaintiff, being his brother, is entitled to 3/16th share of the property by way of inheritance, the Defendant No. 2 has got 1/4th share and the Defendant No. 5 has got 1/16th share in the suit properties. The Plaintiff thus has 11/16th share in the same. It further appears that the Plaintiff Ahmed Shah Khan has executed and registered a kobala purporting to transfer the property in favour of his wife, Hossaini Bibi. It is alleged that the said document is collusive and sham paper transaction. Further, the said property having been acquired out of the income of ejmali property, the Plaintiff has got 8 annas interest therein and thus the deceased Defendant Ahmed Shah Khan having died leaving the Plaintiff as one of his heirs and in the suit property the Plaintiff has 11/16th share. It is alleged that the cause of action arose on and from June 15, 1958, kobala relating to 16B Ibrahim Road was however invalid and when the Defendant No. 1 refused to pay any income of the properties or to effect partition. From these pleadings the Plaintiff prayed for a decree for partition in the preliminary form against the Defendant regarding 11/16th share in the suit property and for a declaration that the deeds and transaction mentioned in Schedule 'C' are not at all binding upon the Plaintiff and are all benami, fraudulent, sham paper transaction and that a final decree be passed in favour of the Plaintiff and in terms of the final report and that such other relief or reliefs be granted to which the Plaintiff is entitled under law and enquiry. The suit was filed on September 29, 1959 and the Defendant No. 1 died on May 1, 1960.
(2.)The Defendants Nos. 2 and 4 filed written statements on March 21, 1960. In the written statement filed by the Defendant No. 2 Shahzadi Begum it was stated as follows:
It is stated that the suit is barred by limitation and is liable to be dismissed for partition. The Defendant denied that the Defendant No. 1 and the Plaintiff used to carry on business in dry fruits jointly at the Hogg Market and they used to mess together and they formed a joint family or that they had joint common fund ejmali which was used to be kept with the Defendant No. 1. The Plaintiff and the Defendant No. 1 did never carry on business in dry fruits jointly or singly at stall No. 77 of the Hogg Market in the name of Hazi Ali Bux Fazle Elahi during the years 19121942 or at any time. The alleged business in the name of Hazi Ali Bux Fazle Elahi at stall No. 77, Hogg Market, did not belong either to the Plaintiff 01 the Defendant No. 1. The allegations of joint common fund ejmali and keeping of such fund with the Defendant No. 1 are absolutely false and have been made with the object of instituting this false suit. It was denied that the property at 25 Ekbalpore Lane was purchased by the two brothers in the name of the elder brother with the alleged joint fund. It is alleged that 25 Ekbalpore Lane was purchased by Sahara Rhatoon Bibi, the deceased first wife of the Defendant No. 1 by registered deed of sale in the benami of her husband who lent his name in the said sale deed and the said Sahara Khatoon Bibi after her purchase of the said property built upon the same and she had ever since been in exclusive possession and enjoyment thereof and dealt with it as her own to the knowledge of the Plaintiff arid all. Ahmed Shah Khan, the Defendant No. 1, by the deed of release dated August 6, 1929, executed in favour of his said wife Sahara Khatoon Bibi, declared that he never had any right title or interest in the said property and that Sahara Khatoon Bibi as absolute owner had been in exclusive enjoyment and possession thereof. The Defendant No. 1 in subsequent other deeds made declaration to the same effect. The Plaintiff and/or the Defendant No. 1 had no right title or interest in the said property. The Defendant No. 1 further stated that Sahara Khatoon Bibi died on or about February 22, 1949 and left a will wherein the Defendant No. 1 had been named as executrix and by which she bequeathed among other things, her said property being 25 Ekbalpore Lane. The said will was in the custody of the Defendant No. 1. The Defendant is the only daughter of the testatrix and sole legatee under the said will subject to some other legacies. Long after the death of the testatrix the Defendant No. 1 made over the said will to this Defendant, who in Letters of Administration case No. 8 of 1958 of the Court of Local District Delegate obtained necessary grant with copy of the said will on June 2, 1958. On proper citation being issued, the Defendant No. 1 appeared in the said case but did not contest the same. The estate of her mother, the said testatrix, is not vested in this Defendant as administrative and as such, he is in exclusive possession of the said property at 25 Ekbalpore Lane and in course of administration and in terms of agreement dated June 21, 1958, entered into between her and the Defendant No. 1 in conformity with the direction; in the said will, this Defendant has been paying to the Defendant No. 1 the monthly amount on account of his maintenance. It is denied by the Defendant that there was a joint effort and with the income of the joint ejmali business construction was effected on the said premises and that it became the joint property of the two brothers. The Defendant denied that the Plaintiff and the Defendant No. 1 never lived in joint mess. The Plaintiff had been for sometime living separately in a portion of the house at 25 Ekbalpore Lane as licensee under the said Sahara Khatoon Bibi to whom the said property absolutely belonged. The Plaintiff removed to a rented house at 19E Mominpore Road, in 1940. The Defendant further denied that the Plaintiff never received any share of the income of Schedule 'A' property nor the Defendant No. 1 could give to the Plaintiff any share of income of the said property. The Defendant stated that the income of the Schedule 'A' property could never be kept with common consent with the Defendant No. 1 as the said property did never belong to the Plaintiff or the Defendant No. 1 and as such, the property is not liable to be partitioned. The Defendant stated that on August 22, 1944, the Defendant No. 1 in his own interest and with his own money purchased in auction sale, surplus Corporation land on Ibrahim Road in three contiguous lots of which the northern one was lot No. 16 containing the area of 3 cottahs 5 chattacks and 40 sq.ft. and subsequently being premises No. 16/1 Ibrahim Road, the middle one was lot No. 17 containing the area of 3 cottahs and odd subsequently being premises No. 17 Ibrahim Road and the southern one was lot No. 16 containing the area of 4 cottahs and odd subsequently being premises No. 18/1 Ibrahim Road. All these plots were amalgamated into one premises renumbered as 16 Ibrahim Road. The Defendant No. 1 constructed structure thereon in his own interest and with his own money and had been in exclusive possession and enjoyment of the same. The Schedule 'B' property exclusively belonged to the Defendant No. 1 and the Plaintiff never had 8 annas share or any share therein. It is further stated that the Defendant No. 1 divided the said 16 Ibrahim Road premises into three separate portions now renumbered as 16A, 16B and 16C. The Defendant No. 1 by two registered deed of lease granted permanent lease of the said northern and southern portions now numbered as premises Nos. 16A and 16C Ibrahim Road to the Defendants Nos. 3 and 4 respectively and by deed of sale sold the middle portion now numbered as 16B Ibrahim Road to his third wife Hussaini Bibi. The said premises No. 16B Ibrahim Road has been left out of this suit and the said Hussaini Bibi has not been made a party. The Defendant denied the allegation that the Plaintiff has still in his possession a drawing room in the ground floor of the said premises No. 25 Ekbalpore Lane, wherein he has got his furniture and very often goes there. The Defendant further denied that the Defendant No. 1 recently stopped paying any money out of the income of the suit properties and that on being pressed, he expressed that he had been forced to make some benami documents in favour of his wife and daughter who are claiming the properties on the basis thereof and that he is not in a position to give the Plaintiff his due share of the usufruct. The Defendant further stated that the Plaintiff being a very designing person in collusion with the Defendant No. 1's third young wife Hussaini Bibi removed the Defendant No. 1 to his house at 8A Ekbalpore Lane and thereafter he is living at the said house. The Defendant No. 1 is now completely under the evil influence of his third wife and the Plaintiff and both of whom are acting in collusion with each other and with the evil motive of depriving this Defendant and her son and daughters, the Defendants Nos. 3 and 4 of their properties, the present false and fraudulent suit has been instituted. It is further stated that the Defendant No. 2 was granted Letters of Administration in respect of the will and unless the said will is revoked the suit is not maintainable. It is further stated that the plea for partition as made out in the plaint is based in the history of false allegation and fraudulent case and the suit for partition is liable to be dismissed.

(3.)The Defendants Nos. 3 and 4, the minor sons of Sahazadi Begum, the Defendant No. 2, also filed written statements stating, inter alia, that there was no joint business in dry fruits, never messed together and never formed joint family. The property at premises No. 25 Ekbalpore Lane was never purchased from the joint fund. The premises No. 16 Ibrahim Road was purchased by the Defendant No. 1 with his own money in auction sale held by the Corporation of Calcutta on August 22, 1944.
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