The court ruled that an unproven claim of oral gift does not invalidate the rightful heirs' claims to joint ownership of inherited property, and that partition is permissible among heirs without requiring division of all properties.

JUDGMENT :

Anubha Rawat Choudhary, J.

1. This First Appeal has been filed against the Judgment and Decree dated 21.09.2024 (Decree sealed and signed on 28.09.2024) passed by the learned Civil Judge (Senior Division-VIII), Jamshedpur in Original Suit No.107 of 2014 whereby the learned trial court has decreed the suit seeking partition on contest and held that the plaintiffs are entitled to get 6/12^th i.e. ½ share of the suit property. The schedule-A is the genealogy and Schedule-B is the suit property consisting of land measuring 1½ Bighas i.e. 30 Kathas at Mango, Jamshedpur having pucca house and other structures standing thereon.

2. The appellants and Proforma Respondent Nos.55 to 58 are the legal heirs of the original Principal Defendant No.1 namely, Wali Alam. Respondent Nos.1 to 17 are the legal heirs of the original Plaintiff No.1 namely, Mahmood Alam. Respondent Nos.18 to 29 are the legal heirs of the original Plaintiff No.2 namely, Moid Alam. Respondent No.30 namely, Hasan Rizwi @ Munna was the Plaintiff No.3.

3. The defendant no.1 primarily opposed the suit on the ground that he acquired the suit property through oral gift -‘Hiba’. The oral gift has been disbelieved by the learned trial court. Admittedly, the parties are Mahomedan and governed by Sunny Section of Muslim Law and the genealogy contained in schedule-A of the plaint is also not in dispute as during the course of arguments the learned Senior counsel for the appellants has given up the plea of non-joinder of necessary parties as recorded in order dated 18.06.2025. It is not in dispute that Sk. Abdul Ghani was the common ancestor of the parties.

4. Case of the plaintiffs

a. As per the plaint Sk. Abdul Ghani was the common ancestor of the plaintiffs, Principal Defendant No. l, Defendant Nos.2 to 6 and Proforma Defendant Nos. 7 to 11. His wife Bibi Fatima Khatoon died leaving behind four sons namely, Mahmood Alam (Original Plaintiff No.1), Moid Alam (original Plaintiff No.2), Wali Alam (original Principal Defendant No.1) and Zaffar Alam (since deceased) and five daughters namely, Smt. Noor Jahan Khatoon (original Defendant No.2), Karima Khatoon (original Defendant No.3), Zaibun Nisa (original Defendant No.8), Safia Khatoon (since deceased) and Razia Khatoon (since deceased) as their legal heirs and successors. Zaffar Alam had expired prior to filing of the suit leaving behind his two sons namely, Hasan Rizwi @ Munna (Plaintiff No.3) and Jahangir Alam (Defendant No.9) and one daughter namely, Ishrat Jahan (Defendant No.10) and widow Amina Khatoon (Defendant No.11) as his legal heirs and successors.

b. Safia Khatoon had predeceased her father Sk. Abdul Ghani and therefore, her heirs were not entitled for any share over the properties of Sk. Abdul Ghani and were not made parties to the suit. Razia Khatoon and her husband also expired leaving behind them their three sons namely Farooq Azam, Siddique Akbar, Ali Akbar (Defendant Nos.4, 5 & 6).

c. The common ancestor Sk. Abdul Ghani, alongwith Syed Mohammad Ekram Ahmad, Manizural Haque and Sk. Abdul Bari, jointly purchased 6 Bighas of land in Mango, Jamshedpur, from their own fund vide registered Sale Deed No.3877 dated 04.11.1952. The three co-owners amicably partitioned the above land by means of a Deed of Partition dated 05.01.1953 and Schedule-B land measuring area 1½ Bighas (suit property) came in exclusive share and possession of Sk. Abdul Ghani who constructed pucca house and enjoyed right, title, interest and possession and paid electricity and other charges in his name to the concern authority. Sk. Abdul Ghani, the common ancestor of the parties expired on 20.03.1981 and his wife Bibi Fatima Khatoon also expired in the year 1997.

d. It is the case of the plaintiffs that after death of Sk. Abdul Ghani, all the parties i.e. plaintiffs, Principal Defendants and Proforma Defendants have jointly inherited, acquired, possessed the Schedule- B property and have been in joint peaceful possession enjoying all acts of ownership