Point of Law: Section 206 of Mohammadan Law deals with “Hiba” of undivided property.

JUDGMENT :

Heard Mr. B. C. Das, the learned Senior Counsel assisted by Mr. GA Saikia for the Appellant and Mr. S Ali, the learned counsel appearing on behalf of the Respondent.

2. This is an appeal under Section 100 of the Code of Civil Procedure, 1908 challenging the judgment and decree dated 15/9/2008 passed in Title Appeal No. 59/2006, whereby the judgment and decree dated 15/5/2001 passed by the Court of the Civil Judge(Sr. Divisiion) No. 1 in Title Suit No. 106/1994 was set aside.

3. It is relevant to take note of that, this Court vide an order dated 6/3/2009 admitted the instant appeal by formulating a substantial question of law which reads as under :

(1) Whether the learned First Appellate Court committed error of law in construing the Exhibits 4, 6 and 7 as documents of family settlement between the contesting parties ?

4. Thereafter when the instant appeal was taken up for hearing on 12/5/2022, this Court vide an order formulated two more additional substantial questions of law which reads as herein under :-

(1) Whether Exhibits 4, 6 & 7 are Relinquishment Deeds or a Gift Deed in the facts and circumstances of the instant case ?

(2) Whether Exhibits 4, 6 & 7 if construed to be Relinquishment Deeds would confer any right upon the parties to the suit ?

5. For the purpose of deciding as to whether the said substantial questions of law so formulated by this Court vide the orders aforementioned are involved in the instant appeal, it would be relevant to take note of the brief facts of the instant case, which led to the filing of the instant appeal. For the purpose of convenience the parties herein are referred to in the same status as they stood before the Trial Court.

6. The Respondent Nos. 1 to 5 herein as Plaintiffs had instituted a suit which was registered and numbered as Title Suit No. 106/1994. The case of the Plaintiffs in the said suit is that the land measuring 18 Bighas 2 Kathas 2 Lechas under various Dags i.e. Dag Nos. 344, 343, 120, 601 and 684 covered by K.P. Patta No. 43(of the 1957-64 settlement) of village Borsajai; Mouza-Beltola originally belonged to one Sakhawat Ali (since deceased). The said Late Sakhawat Ali had four sons i.e. (1) Samsul Huda, 2. Nurul Huda, (3) Badrul Huda and (4) Joinal Abedin. Upon the death of Late Sakhawat Ali, each of his sons had rights over 4 Bighas 3 Kathas ½ Lecha of land. Sometime in the year 1950-51 the land of Patta No. 43 which was earlier Patta No. 36 was put on revenue sale in a proceedings being Revenue Sale Case No.51/50-51. Except Badrul Huda(since deceased), the other sons of Late Sakhawat Ali were not interested in the land and expressed their unwillingness to take steps for setting aside the sale. Late Badrul Huda incurred all expenses and got the sale set aside in the year 1953 in an appeal before the Revenue Tribunal and deposited the cost of Rs.68.12 paise by Challan No. 639 dated 3/8/1953. It has been alleged in the plaint that the other brothers of Badrul Huda gave up their claim and possession over the land and Badrul Huda continued to pay the revenue of the land. As the sale was set aside, the names of all the sons of Late Sakhawat Ali remained in the revenue records, though Late Badrul Huda possessed the entire patta land.

7. Of the four brothers, Nurul Huda died issueless and his wife also died immediately thereafter. With the death of Nurul Huda the shares of the brothers increased from 4 Bigha 3 Katha ½ Lecha to 6 Bigha O Katha 14 Lechas as each of the brothers inherited 1B Bigha 2 Kathas 13½ Lechas upon the death of Late Nurul Huda. Subsequent thereto, Badrul Huda died leaving behind the plaintiffs as his heirs and Samsul Huda died leaving behind the Defendant No. 1 as his sole heir.

8. It was further mentioned that in pursuance to the amicable settlement so reached, three documents were executed and registered which were ---1) Deed of Relinquishment No.7905 dated 4/11/1972 by Late Joynal Abedin (Ext.4), (2) Deed of Relinquishment No.7904 dated 4/11/1972(Ext.