JUDGMENT
Kanhaiyaji, J.
1. These two appeals arise put of a decision of the learned Subordinate Judge, Hazaribagh. As these appeals arise out of the same judgment, they have been heard together, and this judgment will govern both of them.
2. The plaintiff filed a suit for partition of the properties given in Schedule ‘A’ of the plaint. The plaintiff claimed 22/5 annas share in item No. 1. 12/5 annas share in Item No. 2 and 32/5 annas share in Item No. 3 of Schedule A properties. He also prayed that a separate takhta be carved out by the appointment of a pleader commissioner, and he may be put in khas possession of the takhta to be allotted to him.
3. The relationship of the parties is as shown in the genealogical table given below :
SK. NATHU
____________________________|_______________
| |
Habibul Hassan Md. Ellyas Hussain
| ____________________|____________
| | |
| 1st wife — Kaziban 2nd wife–Bibi Haliman
| (Dead) (Defendant No. 1)
| |
| Bibi Kaniz Fatima
____|_____________________________________________________________
| | | | |
Azizul Hassan Abdul Hasan Md. Manir Bibi Kolsum Zainul Abodia
(Dead) (Defendant No. 3) (Plaintiff) (Defendant No. 4) (Defendant No. 5)
4. The case of the plaintiff is that Item No. 1 of Schedule A of the plaint was held by Habibul Hassan, father of the plaintiff, and by Md. Ell-yas Hussain, uncle of the plaintiff, in equal shares and was in their joint possession during their respective lifetime. Md. Ellyas Hussain died in or about the year 1948 leaving behind him his brother Habibul Hassan and his two widows, Bibi Kaziban and Bibi Haliman and his widowed daughter. Most. Kaniz Fatima; and, upon his death his half share devolved upon his brother, his two widows and his widowed daughter. On the death of Md. Ellyas Hussain the share of his brother Habibul Hassan in the house was augmented to -/11/- annas, while the remaining -/5/- annas share devolved upon his two widows and daughter. Bibi Kaziban died leaving behind her daughter Bibi Kaniz Fatima, defendant No. 2, and her share in the house devolved upon this defendant. The father of the plaintiff died about nine years back leaving behind him the plaintiff and defendants 3 to 5 as his legal heirs who came in joint possession of the -/11/- share of Habibul Hassan in the house and have been in joint possession of the same along with defendants 1 and 2.
The further case of the plaintiff is that defendant No. 5 began to remove a lot of movable properties and ornaments of their father through his son. On the 27th May, 1951, the son of defendant No. 5 was caught red-handed in the act of stealing ornaments from the box of the plaintiff’s father. When the people of the locality collected, defendant No 5 admitted before them to have removed through his son ornaments worth Rs. 1,325/- only and gave an undertaking in writing that he would not get any share in his father’s property unless he repaid the said amount to the plaintiff and other heirs of Habibul Hassan. In spite of repeated demands, defendant No. 5 has not repaid the amount and. therefore, he has forfeited his share in the suit properties.
5. The money in deposit in Postal Savings Bank at Hazaribagh standing in the name of the father described in Item No. 3 of Schedule ‘A’ devolved upon the plaintiff and defendants 3 and 4 only as defendant No. 5 had forfeited his claim to a share in his father’s property. Md. Ellyas Hussain had also accounts in Postal Saving Bank of the United Bank of India and Chota-nagpur Banking Association at Hazaribagh. After the death of the plaintiff’s father, the money in deposit in the said account? described in Item No. 2 of Schedule ‘A’ devolved upon the plaintiff and defendants 1 to 4 defendant No.
5 had forfeited his claim. Thus, the plaintiff claimed for partition of his share, as stated above.
6. Separate written statements were filed by defendant No. 3. defendant No. 4. defendant No. 5 and defendants 1 and 2. In none of the written statements, the relationship as given in the genealogical table has been disputed. The main challenge of defendant No. 3 is regarding the detail of the properties given in the plaint. It has been stated that the plaintiff has deliberately omitted to sive a full and correct list of properties under partition and concealed a number of movable and immovable properties which are liable to be partitioned and a list whereof is given in Schedule A of the written statement filed by this defendant. His further case is that a will propounded by Most. Bibi ‘Kajiban was found to be forged by the District Judge of Hazari-bagh in Title Suit No. 2 of 1949. This defendant had no objection to the partition of the properties mentioned in the plaint if the properties left out of the plaint and which have been mentioned in his written statement be also partitioned and a separate takhta proportionate to his share equal to the plaintiff be carved out and he be put in possession of the same.
7. In the written statement filed by defendant No. 5, a plea had been taken that besides the properties mentioned in the plaint some more items of properties, which are the joint properties of the parties, have been omitted by the plaintiff. Such properties have been described in Schedules ‘X’ and ‘Y’ of the written statement. This defendant refuted the allegation in the plaint regarding the removal of the ornaments and movables of the father. He described the said allegation in the plaint as false. It has been stated in the written statement of this defendant that the ornaments possessed by the father of the plaintiff and defendants 3 and 5 are in possession of the plaintiff as detailed in Schedule ‘Y’ of the written statement, and the plaintiff and defendants 3 and 5 are entitled to those ornaments, each of the plaintiff and defendants 3 and 5 having -/4/8 pies share and the remaining -/2/- share belonging to defendant No. 4. Besides categorically denying the theft of the ornaments by this defendant, it has been firmly asserted that no undertaking forfeiting his share in the family properties was ever given by this defendant, and the story of theft has been invented by the plaintiff to deprive this defendant of his legitimate share in the family properties. If the plaintiff produced any document regarding the undertaking the same must be forged and fabricated. This defendant claimed -/3/1 pie share in the properties as mentioned in Schedule ‘A’ of the plaint and ‘X’ of the written statement as also -/4/8 pies share in Schedule ‘Y’ of the written statement.
8. In the written statement filed by Most. Bibi Kolsum, defendant No. 4, the main contention is about the share. This defendant claimed a larger share and a separate takhta for her share in items 1 to 3 of Schedule ‘A’ of the plaint In the written statement filed by defendants 1 and 2. it has been stated inte r alia that a sum of Rupees 11,000/- and two gold dinars payable to each of defendant No. 1 and mother of defendant No. 2 as dain mohar was outstanding against Md. Ellyas Hussain at the time of his death and the same having not been paid, the outstanding became a charge upon his estate; and, defendant No. 1 and her co-widow and, after her defendant No. 2 have been holding a major portion of the house in suit in lieu of their dower debt. They have got electric fittings and connections done at the cost of Rs. 500/-. They have further made improvement in the western portion of the house at the cost of Rs. 600. Defendant No. 2 also met the entire exnense of funeral and other rites of her parents. She spent about Rs. 1,000/- in bringing the dead body of Md. Ellyas Hussain from Sariya to Hazaribagh and spent on his funeral rites a sum amounting to Rs. 1,000/-. The defendants claimed a charge upon the properties in suit of Md. Ellyas Hussain to the tune of Rs. 1,000/-.
9. The learned Subordinate Judge framed several issues, and, on a consideration of the evidence on record, decreed the suit in part. The learned Subordinate Judge found that defendant No. 5 has not forfeited his share in the properties in suit and that the deed of agreement is forged and fabricated and it has got no legal and binding effect He has further found that although the plaintiff has omitted to bring several properties, movables and immovables, belonging to Habibul Hassan and Md. Ellyas Hussain, in the hotchpot for partition, but the suit would not fail for non-inclusion of these properties.
Under issue No. 4, in view of the findings given above, the learned Subordinate Judge determined the share of the different parties. He further held that defendants 1 and 2 are entitled to get dower debt amounting to Rs. 1,000/-and two dinars each from the heirs of Md. Ellyas Hussain, and these defendants can retain possession of the house so long the dower debts are not discharged. It was also held that these defendants are also entitled to recover a sum of Rs. 1,000/- which they incurred in connection with the funeral expenses and other rites performed by them on the death of Md. Ellyas Hus-sain.
10. The plaintiff Is the appellant in First Appeal No. 505 of 1964. Mr. Brahmanand ‘Singh, learned Counsel appearing for the plaintiff, has urged that the learned Subordinate Judge has taken mistaken view both of law and fact in coming to a conclusion that defendant No. 5 has not forfeited his share in his father’s properties. He further submitted that at least the plaintiff ought to have got his share of money out of the price of the ornaments stolen. The case made out in the plaint is that defendant No. 5 began removing the movables and ornaments of his father, Habibul Hassan, through his son. On the 27th May, 1951, Zahir son of Zainul Abedin (defendant No. 5) was caught red-handed in the act of stealing ornaments from the boxes of the father. When the people of the locality collected, defendant No. 5 admitted before them to have removed the ornaments worth Rs. 1.325/- through his son and gave an undertaking in writing that he would not get any share in his father’s property until he paid the share out of the amount of the price of the stolen ornaments to the plaintiff and other heirs of Habibul Hassan. The alleged agreement is Ext. 2, in which the details of the ornaments are given. The statements contained in Ext. 2 are in these words:
“I am liable to pay this money, because the aforesaid articles belong to (my) father and he is alive. These articles are missing, Zaheer has stolen them, and has derived benefit illegally. Mode of payment — I shall pay Rs. 10/- to my father per month, and if the money could not be paid till during his lifetime, I shall pay the money out of my share in the properties of my father. I shall not put forward any plea and objection to it. If I shall do so, the same shall be null and void. I undertake that the said Zaheer will not take anything illegally in future. If he would take, legal action would be taken against him according to law. I execute this Ekrarnama (deed of agreement) of my own accord without any pressure or coercion on the part of any one in enjoyment of my proper senses, so that it may be of use when required.”
This agreement is on a revenue stamp and is witnessed by Ramkhelawan and Md. Moneer, and their signatures are Exts. 1 and 1 (a). Ramkhelawan (P-W-1) has proved his own signature on Ext. 2 and supported the recitals therein. However, in his cross-examination, he has stated that the deed of agreement had been written out before his arrival and he signed the same after he reached. P. W- 2 Md. Yusuf Ali has come to state that about thirteen years ago Zaheer. son of Zainul Abedin, had stolen the property of Habibul Hassan, and Zainul Abedin had undertaken to pay the price of the articles stolen and the document was executed by him. P. W.
3 Md. Alauddin also spoke about the execution of the deed of agreement by Zainul Abedin after the theft. P. W. 4 Mohan Ram Vishwakarma has also stated that thirteen years ago he learnt about the theft and saw that a deed of agreement was being scribed.
11. The above-named four witnesses only supported the statements made in the alleged agreement (Ext. .2); but the plaintiff (P. W. 5) perhaps realised the difficulty that the payment of money was not enough for the success of his case. So, he stated that Zainul Abedin had given an undertaking that if he would not pay the value of the ornaments, he would forfeit his interest in the property. This statement of the plaintiff is not supported by the first four witnesses and the recitals in the alleged agreement (Ext. 2). According to the deed of agreement, the defendant had agreed to pay Rs. 1,325/- to the parties as the value of the ornaments said to have been stolen by Zaheer, his son. It has been stated that in case he failed to pay, this amount would be realisable from his share out of his father’s property. Nowhere, Zainul Abedin has stated that he would forfeit his legal share in the properties of his father. Therefore, in my opinion, the plaintiff himself has given a go-by to bis case pleaded in the plaint on this point.
12. P. W. 5 has also stated that Zaheer was caught for having committed the theft, and he was going to be handed over to the police; but the Mohalla people intervened and the agreement was executed. So, this agreement was executed by Zainul Abedin for the purpose of saving his son from criminal prosecution. The learned Subordinate Judge is right in holding that such an agreement is void in the eye of law according to Section 23 (h) of the Contract Act. Moreover, such an undertaking purporting to forfeit the entire claim of defendant No. 5 in the movables and immovables of his father amounts to extinguishing his rights in the ancestral property. Such an agreement, therefore, requires registration; and, Ext. 2 being not registered, it cannot be admitted into evidence for proving the case of relinquishment as set up by the plaintiff. On a careful consideration of the oral evidence which requires no repetition, I am convinced that the findings arrived at by the learned Subordinate Judge that defendant No. 5 has not forfeited his share in the properties in suit and that the deed of agreement is forged and fabricated are correct.
13. This view is also supported by the fact that D. W. 6 Sirajuddin Ahmad, who has been examined on behalf of defendants 3 and 5, has stated that the house of Habibul Hassan and Md. Ellyas Hussain is adjacent west of his house; and. in May 1951 there was no hulla of theft in the house of Habibul Hassan. D. W. 11 Fazlur Kahman who has his house on the west of the house of Habibul Hassan and Md. Ellvas Hussain, has also stated that there was no hulla of any theft as alleged by the plaintiff. Defendant No. 5 (D. W. 13) has denied the theft by his son, Zaheer. Zaheer has also been examined in this case as D. W. 13- He has stated on oath that he never committed theft of ornaments of Habibul Hassan.
So, from the evidence discussed above, it is fully established that there was no theft of movables and ornaments. The theft is alleged to have taken place on the 27th May 1951, during the lifetime of the father of the plaintiff, Habibul Hassan. In Ext. 2, the deed of agreement, Zainul Abcdin is supposed to have undertaken to pay the money to his father whose articles were missing. Therefore this agreement cannot be the foundation of the claim of the plaintiff that defendant No. 5 had relinquished his interest in the property left behind by his father and uncle. So, from the evidence discussed above, I find that the plaintiff has invented a cock and bull story to deprive defendant No. 5 of his share in the family properties.
14. No other point was argued on behalf of the appellant in this appeal, which is devoid of any merit. It is, accordingly, dismissed with costs.
15. In the next first appeal (First Appeal No. 504 of 1964), defendants 1 and 2 are the appellants. Mr. Mazumdar, appearing on behalf of these appellants, has urged three points, namely, (1) that defendant No. 2 ought to have been given a share in the house (Item No. 1 of Schedule A of the plaint), (2) that the dower debt of Rs. 11,000/-with two dinars should have been allowed to each of the two appellants, and (3) that the properties claimed by defendants 3 and 5 in their written statements should have been held either to be non-existent or exclusively belonging to the persons in whose possession they were lying.
16. So far as the first point is concerned, it is worthwhile to mention that in paragraph 43 of the judgment under issue No. 4, in view of his findings, the learned Subordinate Judge has determined the share of the plaintiff and defendants 3 and 5 in the properties mentioned in Item No. I of Schedule A of the plaint at -/3/1 each and the share of defendant No. 1 at -/1/- and that of defendant No. 4 at -/1/3. There is no mention of the share of defendant No. 2 in determination of this issue. If all the shares of the persons who are mentioned above excluding defendant No. 2 are added, they come to -/11/6. Therefore, obviously, there is a deficit of -/4/6. Defendant No. 2 is entitled to this share. This seems to be an omission by oversight in the judgment of the learned Subordinate Judge. The share of defendant No. 2 in the said property is, therefore, -/4/6 pies and the decree will be modified accordingly giving a share of -/4/6 in Item No. 1 of Schedule A of the plaint to defendant No. 2. The first point raised by the learned Counsel is, thus, answered in the affirmative.
17. A Mohammedan husband may settle any amount that he likes by way of dower debt upon his wife though it may be beyond his means and though nothing may be left to his heirs after the payment of the amount; but he cannot in any case settle less than ten dir-hams. In Mirvahedali Kadumiva v. Rashid-beg Kadumiya, AIR 1951 Bom 22 it has been held that where a Muhammadani widow, who is in possession of her husband’s property, still claims the dower debt due to her, then her right to retain possession of the property till the dower debt is discharged exists and it is immaterial in what character whether as a creditor for dower debt or otherwise she came into possession of the property, provided she came into pos-session lawfully and without force or fraud. Such right to retain possession can also be exercised by her heirs after her death. On admitted facts, the dower debt of the two widows had not been satisfied. Therefore, Bibi Haliman. (defendant No. 1), the widow of Md. Ellyas Hussain, and Bibi Kaniz Fatima, daughter of Kaziban, deceased widow of Md. Ellyas Hussain, are entitled to dower debt and may retain possession of the property left behind by Md. Ellyas Hussain till their claims are satisfied.
In this appeal, we are concerned to find as to what was the dam mohar fixed by Ellyas Hussain at the time of his marriages with Kaziban and Haliman. Mr. Mazumdar relied on the evidence of Haliman, who was examined on commission as D. W. 19. She has stated on oath that dower debt was fixed at Rs. 11,000 and two dinars, and that was also the amount of dower debt fixed for her husband’s second wife, who was the mother of defendant No. 2. She has also stated that the said dower debt of herself and that of her sautin (co-wife) were not paid by the husband. No other person, who was present at the time of the fixation of the dower debt, has been examined in this case; but there is one significant statement in the evidence of Haliman. She has stated that “the same rate of Denmohar was fixed for other members of the family at the time of marriage”.
In this connection, defendant No. 3 son of Habibul Hassan as D. W. 17 has stated that the dower debt of his wife is Rs. 1,000/- and two Dinars. D. W. 5, another son of Habibul Hassan, also stated that the dower debt of his wife was Rs. 1,000/- and two Dinars. He also stated that Abul Hassan (defendant No. 3) married three times, and in all the marriages dainmohar was fixed at Rs. 1,000/- and two Dinars. Since Haliman is herself interested in the amount of the dower debt, there is every chance of exaggeration in her claim; but, on the other hand, there are the positive statements of defendants 3 and 5 which were taken in their cross-examination that Rs. 1,000/- and two Dinars was the amount fixed as dain mohar in the marriages in the family, and from these statements it can be safely held that the prevailing amount of dower debt of the ladies married in the family of the parties was Rs. 1,000/- and two Dinars. The conclusion arrived at by the learned Subordinate Judge is correct, and defendants 1 and 2 are only entitled to get dower debt amounting to Rs. 1,000/- and two Dinars each from the heirs of Md. Ellyas Hussain. Counsel for the parties have stated that one Dinar is equivalent to Rs. 32/-. Therefore, defendants 1 and 2 are entitled to get dower debt amounting to Rs. 1064/-, each from the heirs of Md. Ellyas Hussain. The decree will be modified by substituting Rs. 1,000/- and two Dinars to Rs. 1,064/- as dower debts. The second point urged by learned Counsel is accordingly disposed of.
18. The learned Subordinate Judge has considered in detail whether the movable properties as mentioned in the pleadings of defendant No. 3 and defendant No. 5 are also joint properties of the parties. He has devoted much time over this aspect of the case. In my opinion, so much labour was uncalled for when the parties were not anxious to get those properties partitioned. Mr. Ashghar Hussain, learned Counsel appearing for defendants 3 and 5, concedes, and rightly, that the findings given by the learned Subordinate Judge regarding the existence of the movable properties and the claim of the parties concerned will not be res judicata in any subsequent suit, if brought by any party. Therefore, without giving a detailed analysis of the findings arrived at by the learned Subordinate Judge I hold that the learned Subordinate Judge is correct in his conclusion that even if the plaintiff has omitted to bring in the hotchpot for partition several properties, movables and immovables, belonging to Md. Ellyas Hussain and Habibul Hassan, the suit is not liable to be dismissed. In S.M A. Samad v. Shahid Hussain. AIR 1963 Pat 375, it has been held that a suit for partition of even one item of property is maintainable in case of tenants in common. The ordinary rule that a suit for partial partition of the properties owned by the parties to the suit is not maintainable does not however, apply to the case of co-owners who hold land as tenants-in-common as distinguished from the co-sharers holding land as joint tenants. In the case of tenancy-in-common, each co-owner has got interest in each item of the property held as tenancy-in-common, and he is entitled to claim partition in respect of even one of these items without seeking for partition of the other items. In the case of Mohammedans, the co-heirs are only tenants-in-common and there is no joint family in the Hindu Law sense of the term. In the instant case, all the parties to the suit were interested in the items of the properties given in Schedule A of the plaint. Therefore, the suit cannot fail if all the properties left by Habibul Hassan and Md. Ellyas Hussain have not been included in this suit.
19. In conclusion, it must be held that the findings arrived at by the learned Subordinate Judge are correct and should be upheld except the mistake occurring due to the omission of the share of defendant No. 2. The appeal is accordingly allowed in part, as indicated above. However, in the circumstances, the parties will bear their own costs.
20. To sum up. First Appeal No. 505 of 1965 is dismissed with costs; whereas First Appeal No. 504 of 1965 is allowed in part, as indicated above, without costs.
Bahadur, J.
21. I agree.