A transaction of hiba-bil-iwaz is nothing but a sale and where the property is immovable and is of the value of Rs. 100 and upwards, it must be effected by a registered instrument as required by Section 54 of the Transfer of Property Act, 1882.

JUDGMENT :

Supratim Bhattacharya, J.

1. The instant appeal has been preferred by the appellants being aggrieved by and dissatisfied with the Judgment and decree dated 27.11.2009 being passed by the Ld. Civil Judge Sr. Divn. Malda in Partition Suit No. 95 of 2003.

2. The appellants were the defendants in the said partition suit while the respondents herein were the plaintiffs.

3. Through the judgment the Ld. Trial Judge has decreed the said suit for partition on contest in preliminary form. The Ld. Trial Court has come to the finding that the respondents/plaintiffs have 1/14th share each in respect of the suit property while each of the appellants/defendants have 2/14th share in respect of the suit property.

4. The moot point for consideration before this Court is as to whether the impugned judgment passed by the Ld. Trial Court is in accordance with law or not.

5. The Ld. Counsel appearing on behalf of the appellants during his argument has submitted that the Ld. Trial Judge erred in law in decreeing the suit in preliminary form holding the registered hiba-bil-iwaz executed on 08.09.1993 as void. He has further submitted that no such prayer was made on behalf of the respondents/plaintiffs seeking declaration of the said hiba-bil-iwaz as void. The Ld. Counsel has further submitted that the Ld. Trial Judge without going into the evidence of the parties has come to such conclusion and has further submitted that the Ld. Trial Judge has erred in law in holding the registered document as void after 10 years of its execution. He has further submitted that the Ld. Trial Judge has erred in law as no prayer had been made for cancellation of the registered deed under the Specific Relief Act on behalf of the respondents/plaintiffs. He has further submitted that the date of death of Riasutulla Mandal was 28.10.2000 but in the plaint it has been wrongly mentioned as 28.10.2002 and the said partition suit has been filed long after the demise of the said Riasutulla Mandal who had executed the said hiba-bil-iwaz on 23.09.1993. The Ld. Counsel has further submitted that the Ld. Trial Judge has erred in law in holding that the execution of the hiba-bil-iwaz is doubtful. Banking upon the aforesaid facts and circumstances the Ld. Counsel has prayed for allowing the instant appeal.

6. The Ld. Counsel appearing on behalf of the respondents has submitted that the Ld. Trial Judge has not erred in law by coming to the conclusion that the said hiba-bil-iwaz is void. He has further submitted that there being suspicious circumstance which has cropped up in evidence, the Ld. Trial Judge has come to the finding that the said hiba-bil-iwaz is a void one. He has further submitted that the finding of the Ld. Trial Judge that each of the respondents/plaintiffs have share in the suit property to the extent of 1/14th share while each of the appellants/defendants have share of 2/14th in respect of the suit property is absolutely correct. He has further submitted that the finding of the Ld. Trial Judge that the schedule mentioned as the suit property be partitioned amicably on the basis of the preliminary decree which has been finally reached is in accordance with law. Banking upon the aforesaid facts and circumstances the Ld. Counsel has prayed for disallowing the instant appeal.

7. The fact of the instant appeal is that the suit properties originally belonged to Riasatulla and the name of the said Riasatulla is mentioned in the Revisional Settlement (R S) Record of Rights. The said Riasatulla expired on 28.10.2002 at the age of 90 years. At the time of his expiry he left behind ten daughters and two sons.

The aforementioned ten daughters prayed before the two sons of the said Riasatulla, since deceased, for amicable settlement of the suit properties amongst themselves. The brothers did not accept the said proposal of their sisters as such the sisters have been compelled to file the suit for partition being Partition Suit No. 95 of 2003 filed on 25.03.2003.

The sons denied