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2017 Supreme(Gau) 1137
IN THE HIGH COURT OF GAUHATI
Prasanta Kumar Deka, J.
Musssamat Amirun Nessa, Wife of Late Safiquir Rahman & Ors. - Appellant
Versus
Md. Habib Ali, Son of late Arab Ali Laskar, - Respondent
RSA No. 94 of 2007
Decided On : 16-05-2017
For the Appellant :Mr. S.C. Keyal, Mr. S.K. Ghosh and Mr. S.P. Choudhury, Advocates.
Headnote:
Mullas Principles of Mohammadan Law – Section 39, 290 and 294 – Inheritance on Death – Seeking Declaration – Suit land and Deceased – Present appellants defendants he court of learned Civil Judge which was preferred by the respondent/ plaintiff claiming his right, title and interest by way of inheritance over the suit property left behind by his brother husband of present appellant plaintiff/ respondent and husband of defendant/ appellant were owners of land measuring under different dag and patta numbers described in schedule plaint – By way of a registered partition deed both said brothers partitioned said properties – By way of said partition three kedars of land was given to plaintiff/ respondent and remaining land thereof was divided into two equal shares between both brothers – Held, Mullas Principles of Mohammedan Law referred hereinabove specifically stipulates the manner of application of the estate of a deceased Mohammedan and the said estate is to be applied firstly on funeral expenses of the deceased and other death bed expenses. Section 294 also specifically stipulates that dower amount is to be shared by the heirs as per their shares stipulated under the law – No evidence on record to effect of said dower amount which remained un-rebutted – Learned trial court assessed the funeral expenses in a liberal way and came to conclusion that out of total liability of amount is to be delivered to appellant defendant No. 1 and said amount of not beyond share to which plaintiff/respondent is entitled over properties left behind by deceased-husband of defendant/appellant – Second appeal is accordingly disposed.
Mr. Prasanta Kumar Deka, J.(Oral)
Heard Mr. S.K. Ghosh, learned counsel appearing on behalf of the appellants. So far the respondent is concerned, vide order dated 24.9.2010, this court held that notice served on the respondent is deemed to have been properly done. Accordingly, the matter is taken up for hearing.
2. The present appellants are the defendants in T.S. No. 31/ 2004 in the court of the learned Civil Judge, (Senior Division), Hailakandi which was preferred by the respondent/ plaintiff claiming his right, title and interest by way of inheritance over the suit property left behind by his brother i.e. husband of the present appellant No. 1. The plaintiff/ respondent and the husband of the defendant/ appellant No. 1 were the owners of the land measuring 35 Bighas, 12 Khatas 1 Chatak under different dag and patta numbers described in schedule 1 of the plaint. By way of a registered partition deed dated 7.10.1988, both the said brothers partitioned the said properties. By way of the said partition, three kedars of land was given to the plaintiff/ respondent and remaining land thereof was divided into two equal shares between both the brothers. The plaintiff/ respondent got his share of the land described in schedules 2 and 4 of the suit land and the deceased brother Safiqur Rahman got his share described in schedules 3 and 5 of the plaint.
3. During the life time of the said Safiqur Rahman, he transferred land by way of gift deed and sold the same to the present appellant No. 1 and his foster son, the present appellant No. 2. During his life time, the said brother Safiqur Rahman also purchased some land and finally his share stood at 10 Bighas 9 Khatas 7 Chataks 10 Gandas. The said Safiqur Rahman died on 26.12.2000 leaving behind his wife, the present appellant No. 1 as the sole heir for the purpose of inheritance of the property left behind by said Safiqur Rahman under Mohammedan Law. The plaintiff respondent is entitled to 3/4th share out of the total land left behind by Safiqur Rahman which comes to 7 Bighas 17 kathas 12 chataks 10 gandas of land and also the appellant No. 1 is entitled to inherited 1/4th share which comes to 2 Bighas 12 Khatas 5 chataks 10 gandas of land. The inherited portion of the land by the plaintiff/respondent has been shown in schedule 6 of the plaint and the share of the plaintiff/respondent in the suit patta by the right of purchase and inheritance is shown in schedule 7 of the plaint. The plaintiff/respondent filed the suit seeking declaration of right, title and interest and confirmation of possession of schedules 2, 4 and 6 lands which he got as his share by virtue of registered partition deed as well as by way of inheritance on the death of Safiquir Rahman and also prayed for temporary injunction.
4. The appellants/defendants by filing their written statement contested the claim of the plaintiff/respondent taking the plea that the plaintiff/respondent had no land as described in schedules 2, 4 and 6 as per registered partition deed, that he has no possession over the schedule 6 land as the share of the plaintiff/respondent falls in different dags and pattas and not within the common boundaries. However, it is admitted that the plaintiff/respondent has got his share by virtue of registered deed of partition and also inherited the same from said Safiqur Rahman. However, the same is not described in the schedule of the plaint properly. It is also pleaded in the written statement that late Safiqur Rahman at the time of his death was indebted to the tune of Rs. 75,000.00 for his treatment and the plaintiff/respondent is bound to pay 3/4th share of the said indebted amount while inheriting 3/4th share of the land of said Safiqur Rahman. That apart, late Safiqur Rahman had not paid the dower amount of Rs. 18,000.00 which was fixed at the time of solemnization of the marriage of the answering appellant/ defendant No. 1. The appellant /defendant No. 1 is entitled to get the share and the pl
