Ajit Singh, Actg. C.J. - (1.) THE following judgment of the court was delivered by: Ajit Singh, Acting Chief Justice: - -1. This intra court appeal has been filed against the judgment and decree dated 14/08/1986 passed by the learned Single Judge in S.B. Civil First Appeal No. 139/1974.
(2.) THIS appeal arises from a suit for partition as well as mesne profit, which was instituted by the original -plaintiff Zakia Begum. The genealogical tree of the parties to the suit is, as follows: - - The original plaintiff -Zakia Begum was daughter of late Munshi Mohd. Ibrahim Sahib, Advocate, who died on 12/09/1958 leaving behind the plaintiff and the defendants. Late Munshi Mohd.Ibrahim left lot of movable and immovable properties, details of which are annexed to the plaint as Ann.1. The plaintiffs are Sunni Muslims. It was further pleaded that defendant No. 4 - Khalil Ahmed was given Rs. 5,000/ - in lieu of the share of the properties after selling one of the properties of late Munshi Mohd.Ibrahim i.e. house known as 'Musafir -khana', situated in Brijrajpura, Kota. It was also pleaded by the plaintiffs that defendants No. 1, 5 and 6 are enjoying the usufruct and income of the properties left by late Munshi Mohd.Ibrahim. It was also pointed out that defendant No. 1 sold the house as well as the agricultural implements situated at Mouza Kurad for consideration of Rs. 2,000/ - and Rs. 1,000/ -, respectively and movable property including gold and cash, which are in possession of defendant No. 1. Defendants No. 1, 5 and 6 denied the share of the plaintiffs in the suit property. The plaintiffs thereupon filed a suit claiming 7/88th share in the property of late Munshi Mohd.Ibrahim and also the income received from the property.
(3.) DEFENDANT No. 1 in her written statement pleaded that her husband gifted some movable and immovable properties by a Hibanama and she was placed in possession of the properties. It was further pleaded that the house situated in Hiran Bazar was sold for consideration of Rs. 4,000/ - out of which, Rs. 3,400/ - was given to defendant No. 4 as his share. It was also pleaded that her husband during his lifetime had executed a registered gift -deed dated 07/05/1948 in favour of defendants No. 3, 5 and 6 and the suit properties cannot be subjected to partition. In the additional pleadings, defendant No. 1 pleaded that properties mentioned at Item Nos. 8(1) and 8(3) were in possession of defendants No. 3, 5 and 6 in the year 1961 and since her husband was not happy with defendant No. 2, therefore, no share was allotted to defendant No. 2. Defendant No. 1 also pleaded that plaintiff was given a house by way of gift -deed for her residence, which she had sold and was staying in a portion of the house with the permission of defendants No. 5 and 6 as a licencee and has no share in the same.;