Point of Law : Gift of an undivided share (mushaa) in property which is capable of division is irregular (fasid), but not void (batil).

JUDGMENT :

DEVASHIS BARUAH, J.

1. Heard Mr. S.D. Purkayastha, the learned counsel for the Appellants and Mr. S.K. Ghosh, the learned counsel appearing on behalf of the Respondents.

2. The instant appeal arises out of a judgment and decree dated 15.03.2021 passed by the Court of the Civil Judge No. 1, Cachar in Title Appeal No. 16/2018 whereby the judgment and decree dated 07.09.2018 passed by the Court of Munsiff, Lakhipur, Cachar in Title Suit No. 79/2013 was affirmed thereby dismissing the appeal.

3. The instant appeal has been taken up for consideration at the stage of Order XLI Rule 11 of the Code of Civil Procedure, 1908 (for short the “Code”) as to whether there arises any substantial question of law for admission of the instant appeal to be formulated in terms with Section 100(4) of the Code of Civil Procedure. For the purpose of deciding the said aspect of the matter, it would be relevant to take note of the brief facts of the case. For the purpose of convenience, the parties before this Court are referred in the same status as they were before the Trial Court.

4. The Respondents herein as plaintiffs had instituted a suit being Title Suit No. 79/2013 before the Court of the Munsiff No. 1 praying for a decree of declaring exclusive right, title, interest and possession of the plaintiffs in respect to the Schedule I, II and III properties; for confirmation of possession of the plaintiffs over the land described in Schedule I, II and III; for declaration that the defendants have no right, title, interest and possession over the lands described in Schedule I, II, III, VI and VII; for declaration that the names of Ayesha Bibi and Imam Uddin recorded in the concerned Jamabandi described in Schedule IV and V are void, illegal, fraudulent and inoperative and to cancel and remove their names from the concerned Jamabandies and Chithas described in Schedule IV and V and send the copy of the decree to the Settlement Officer, Silchar, Cachar to note the fact of cancellation in the concerned Jamabandies and Chithas; for a declaration to the Deputy Commissioner, Cachar, Silchar/Settlement Officer, Silchar, Cachar for mutation of the name of the Plaintiff No. 1 by right of purchase under Rule 118 of the Assam Land and Revenue Regulation, 1886 in the suit patta in respect to the land measuring 12 Kathas 2 Chataks in favour of the Plaintiff described in Schedule I and rest inherited share in favour of the Plaintiff No. 2 after cancellation of the name of Ayesha Bibi from the aforesaid Jamabandies; for permanent injunction thereby restraining the defendants, their men, employees, agents or any other persons claiming through them from disturbing the plaintiffs to peaceful possess the land described in Schedule VI and VII and/or dispossessing the plaintiffs from the same and further restraining them from alienating, encumbering the Schedules-VI and VII land by way of sale, mortgage, lease or by any mode of disposition to any 3rd party; for costs etc.

5. A perusal of the plaint shows that one Azi Mia was the original owner of the suit land. The said Azi mia had two sons namely Haider Ali and Imam Uddin (Defendant No. 1) and one daughter namely Ayesha Bibi. The said Azi Mia during his lifetime gifted his entire land to his two grandsons namely Nasir Ali and Mojid Ali vide a registered deed of gift bearing Deed No. 1865 dated 18.05.1944. The two sons and the daughter of Late Azi Mia did not get any land by inheritance.

6. It is relevant herein to mention that in Paragraph No. 2 of the plaint, it has been specifically stated that each of the two grandsons of Late Azi Mia got 7 Bighas 8 Kathas and their names have been mutated by right of gift in the Jamabandi of R.S. Patta No. 79 and 80 vide Chitha order dated 12.07.1945 and after amicable partition of the land with specific plots within specific boundaries have been in peaceful possession during their lifetime.

7. Out of the two grandsons, one Mojid Ali expired unmarried leaving behind his one brothe