1990 Supreme(Pat) 258

PATNA HIGH COURT
S.B.Sinha, J.
Abdul Manan Khan
Versus
Mirtuza Khan
Appeal from Original Decree No. 79 of 1982 ;
Decided On : AUGUST 8, 1990

A Will is a confirmation of a right of property in a specific thing, the property or a gratuity to take effect on the death of the testator.

Headnote:

PARTITION - WILL - CONSENT - MOHAMMEDAN LAW - Whether Ext. C is a deed of partition or a Will? Whether consent Will be deemed to have been granted by the parties to the suit after the death of Gulab Bibi? Whether in the event Ext. C, is held to be a deed of Will, any consent was required to be taken by Gulab Bibi in view of the fact that thereby she had bequeathed the properties to all of her heirs? Whether there had been a previous partition amongst the parties to the suit and / or their predecessor-in-interest? Whether in the facts and circumstances of the case, the plaintiff was entitled to any decree for partition? Whether the suit was maintainable in absence of the vendees of the plaintiff and the defendants as parties to the suit?

Fact of the Case:

The plaintiff filed a suit for partition without mentioning in the plaint the extent of his share in the properties in suit. The relationship of the parties appear from the genealogical table as has been set out in the plaint, which is as follow: - The ancestor of the properties, Gulab Bibi was wife of one Mohiuddin Khan. However, according to the defendants the said genealogical table was not complete inasmuch as admittedly some properties have been recorded in the name of Gulab Bibi whereas some properties have been recorded in the name of Gulab Bibi and Mehtab Bibi jointly and some others have been recorded in the name of Mehtab Bibi alone.

Finding of the Court:

The Court held that Ext. C is a Will and not a deed of partition. The Court further held that consent was given by all the heirs of Gulab Bibi after her death and as such, the properties must be deemed to have been bequeathed to the co-sharers and in terms thereof the beneficiaries had come in possession of their respective properties and had been dealing with the same. The Court also held that there had been a previous partition amongst the parties to the suit and / or their predecessor-in-interest and that the plaintiff was not entitled to any decree for partition. The Court further held that the suit was not maintainable in absence of the vendees of the plaintiff and the defendants as parties to the suit.

Issues: (a) Whether Ext. C is a deed of partition or a Will? (b) If the said deed is construed to be a Will, whether consent Will be deemed to have been granted by the parties to the suit after the death of Gulab Bibi? (c) Whether in the event Ext. C, is held to be a deed of Will, any consent was required to be taken by Gulab Bibi in view of the fact that thereby she had bequeathed the properties to all of her heirs? (d) Whether there had been a previous partition amongst the parties to the suit and / or their predecessor-in-interest? (e) Whether in the facts and circumstances of the case, the plaintiff was entitled to any decree for partition? (f) Whether the suit was maintainable in absence of the vendees of the plaintiff and the defendants as parties to the suit?

Ratio Decidendi: The Court held that Ext. C is a Will and not a deed of partition because it was intended to take effect after the death of Gulab Bibi and it contained arrangements for the cultivation of the properties during her lifetime. The Court further held that consent was given by all the heirs of Gulab Bibi after her death because they had been disposing of the property after her death, they had given their consent to the Will by their conduct, and they had not challenged the Will in court. The Court also held that there had been a previous partition amongst the parties to the suit and / or their predecessor-in-interest because the parties had been living separately, they had been dealing with their respective properties as their own, and they had accepted the compensation amount received by the parties with regard to the lands of Bariatu acquired under the provisions of Land Acquisition Act, 1894. The Court further held that the plaintiff was not entitled to any decree for partition because there had been a previous partition amongst the parties to the suit and / or their predecessor-in-interest and because the suit was not maintainable in absence of the vendees of the plaintiff and the defendants as parties to the suit.

Final Decision: Appeal dismissed.