Mosammat Namiran Nessa Vs. Aftaruddin & others

Appellate Division Cases

(Civil)

PARTIES

Mosammat Namiran Nessa ……………..Petitioner.

-Vs-

Aftaruddin & others …………….. Respondents.

JUSTICES

Mohammad Fazlul Karim J

M.M. Ruhul Amin J

Judgment Dated: 9th September 2007

For a declaration that the Wasiatnama dated 25.10.1976 executed by Namiran Nessa is illegal, void, inoperative, fraudulent and not binding upon the plaintiffs ………….(2)

The High Court Division on consideration of the materials on record held that the appellate Court committed an error in law in holding that the Wasiyatnama in question is a heba deed without properly considering the evidence on record. The High Court Division further held that admittedly the plaintiff is the brother’s son of Namiruddin and the defendant Nos.4-22 are heirs of Nishi Bewa and Namiran Nessa was not a blood relation of Namiruddin. The High Court Division accordingly concluded that the trial Court on consideration of the evidence on record rightly found the Wasiyatnama to be valid to the extent of rd share in favour of Namiran Nessa but the learned appellate Court was not justified in setting aside that finding without assigning cogent reason and as such the same finding was liable to be set aside………… (8)

Nurul Islam Bhuiya, Advocate-on-Record. …………………For the Petitioner

Zahirul Islam, Advocate-on-Record. ……………….For Respondent No. I

Respondent Nos.2-22 Not represented.

Civil Petition For Leave To Appeal No.356 of 2006

(From the judgment and order dated 16.08.2005 passed by the High Court Division in Civil Revision No.3175 of 2002.)

JUDGMENT

M. M. Ruhul Amin J: This petition for leave to appeal is directed against the judgment and order dated 16.08.2005 passed by a Single Bench of the High Court Division in Civil Revision No.3175 of 2002 heard analogously with Civil Revision No.3154 of 2002 making the Rules absolute.

2. The plaintiffs of Other Class Suit No.3 of 1999 instituted the suit in the Court of Assistant Judge, Patgram, Lalmonirhat for a declaration that the Wasiatnama dated

25.10.1976 executed by Namiran Nessa is illegal, void, inoperative, fraudulent and not binding upon the plaintiffs and also for a preliminary decree for partition stating, inter alia, that the land of S.A. Khatian No.305 of Mouza West Jagatber belonged to Namiruddin and others to the extent of 14.33 acres and Aftaruddin to the extent of

3.03 acres. The land of S.A. Khatian No.388 of the same Mouza was recorded in the name of Namiruddin and others each having a share of .15 acre. The land of S.A. Khatian No.925 belonged to Namiruddin and others each having a share of 0.40 acre. The further case of the plaintiff is that by an amicable partition Namiruddin got 3.34 acre of land in his own share and while in possession he died leaving behind one widow Nashiran Bewa

and full brother’s sons, the plaintiff Nos.l- 3. After the death of Namiruddin, the plaintiffs while in possession in the suit land, the defendant came to the suit land of S.A. Khatian No.305 on 15.03.1989 and tried to cut and take away some trees. They were obstructed by the plaintiffs and at that time they disclosed about the deed of Wasiyatnama in question and claimed title to 3.44 acres of land. Thereafter, the plaintiff got the certified copy of Wasiatnama on 16.03.1998 and came to know for first time that Namiruddin had executed the Wasiyatnama in question on 25.10.1976. The defendant never possessed the suit land on the strength of the Wasiyatnama.

3. The defendant Nos.l and 23 contested the suit by filing a written statement denying the material allegations made in the plaint. Their case is that Badaruddin the father of the plaintiff Nos.l and 2 sold 1.68 acres of land to Huzuruddin, the defendant No.23. The plaintiff No.3 sold 1.79 acre of land to defendant No.23. Shahidur Rahman and others sold some land to defendant No.23. The defendant No.23 got an area of 4.05 acres of land. The further case is that Namiruddin had no issue and he adopted Namiran Nessa as his daughter. Namiran Nessa was given in marriage with the defendant No.23 and was taken as domesticated son-in-law. They used to reside at the dwelling house of Namiruddin who being satisfied, expressed his intention to transfer some land by a deed of Heba-bil-ewaj in their favour. The deed writer instead of writing a deed of heba-bil-ewaj wrote a Wasiatnama in favour of the defendant. The deed was duly registered at the

Hatibanda Sub-Registry Office. The further case is that Baje Mahmud demanded the share of Namiran whereupon a salish was locally held. As per the decision of that salish the defendant No.l transferred 50 decimals of land by kabala dated 22.04.1978 in favour of Baje Mahmud.

4. The plaintiff of Other Class Suit No.5 of 2000 of the Court of Assistant Judge, Patgram, Lalmonirhat, prayed for rectification of the Wasiyatnama deed dated 25.10.1976 as a deed of Heba stating, inter alia, that Namiruddin had no issue and he

adopted the plaintiff as his daughter. She was given in marriage with the defendant

No.23 and they resided at the dwelling house of Namiruddin. Namiruddin expressed his intention to transfer his entire property in favour of the plaintiff and also in favour of his wife Nishi Bewa lieu of dower. The deed was written an Wasiyatnama in respect of Heba-bil-Ewaj. Hence is the suit.

5. The defendant Nos.4-22 contested the suit by filing a written statement denying the material allegations made in the plaint. There case is that Namiruddin was owner to the extent of 3.34 acres in the suit land. He died leaving behind only widow, Nishi Bewa and the plaintiff Nos.1-3 as his brother’s son. Thereafter, Nishi Bewa died leaving behind the defendant Nos.4-22 as her heirs. On 15.03.1998 the defendant No.3 went to cut trees from the land of Khatian No.305 and they were obstructed by the plaintiff and at that time they disclosed about .the deed of Wasiyatnama in question.

6. Both the suits were tried analogously by the learned Assistant Judge, Patgram. Lalmonirhat and Other Class Suit No.3 of 1999 was decreed in part holding the  Wasiyatnama to be a valid Wasiyatnama  to the extent of 1/3 rd of Namiruddin and

dismissed the Other Class Suit No.5 of 2000 holding that the suit is barred by limitation and the Wasiyatnama to be a valid one. On appeal in Other Class Appeal No. 19 of 2001 (arising out of Other Class Suit No.3 of 1999) and Other Class Appeal No. 18 of 2001 (arising out of Other  Class Suit No.5 of 2000) the appellate Court allowed both the appeals, Thereafter, Civil Revision No.3175 of  2002(arising out of Other Class Appeal

No. 18 of 2001) and Civil RevisionNo.3154 of 2002 (arising out of Other Class Appeal No. 19 of 2001) were preferred before the High Court Division and the High Court Division heard both the matters analogously and the Rules were made absolute.

7. We have heard Mr. Nurul Islam Bhuiya, the learned Advocate-on-Record for the petitioners and Mr. Zahirul Islam, the learned Advocate-on-Record for the respondents and perused the judgment of the High Court Division and other connected papers..

8. The High Court Division on consideration of the materials on record held that the appellate Court committed an error in law in holding that the Wasiyatnama in question is a heba deed without properly considering the evidence on record. The High Court Division further held that admittedly the plaintiff is the brother’s son of Namiruddin and the defendant Nos.422 are heirs of Nishi Bewa and Namiran Nessa was not a blood relation of Namiruddin. The High Court Division accordingly concluded that the trial Court on consideration of the evidence on record rightly found the Wasiyatnama to be valid to the extent of l/3rd share in favour of Namiran Nessa but the learned appellate

Court was not justified in setting aside that finding without assigning cogent reason and as such the same finding was liable to be set aside. On question of possession the findings of both the Courts are concurrent. The High Court Division held that the plaintiffs of Other Class Suit No.3 of 1999 could prove their possession in the suit property to the extent of their own share. The plaintiff being heir of Namiruddin and having been able to prove his joint possession in the suit land, the High Court Division opined that the trial Court rightly decreed Other Class Suit No.3 of 1999 in part and accordingly made both the Rules absolute.

9. In view of the discussion made above, we are of the view that the High Court Division upon correct assessment of the materials on record arrived at a correct decision. There is no cognet reason to interfere with the judgment of the High Court Division.

10. The petition is dismissed.

Source : V ADC (2008),662

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