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passed by the learned Subordinate Judge, Darbhanga in Partition Suit No.181 of 1967 whereby the trial court decreed the plaintiff's suit for partition in part.

2. The plaintiffs-appellants had filed the suit claiming partition of 1/8th share in the suit property left by her father, Haji Shafiullah described in Schedule II to VI. According to the plaintiffs, Patna High Court FA No.176 of 1976 dt.07-05-2013 her father, Haji Shafiullah died in June, 1966 leaving behind four sons namely Wasi Ahmad, defendant no.1, Ali Ahmad, defendant no.2, Sayeed Ahmad, defendant no.3 and late Nazir Ahmad, widow Bibi Fatma and two daughters namely Asma Khatoon, the plaintiff and Bismillah Khatoon, the defendant no.4. Nazir Ahmad one of the sons of Haji Shafiullah predeceased him leaving behind his two sons and 3 daughters who are defendant nos.6 to 10. The widow, Bibi Fatma died during the pendency of the suit, therefore, her name was struck off. According to the plaintiffs, 3 registered gift deeds were executed by Haji Shafiullah on 29.09.1962 and two registered gift deeds on 04.05.1962 in favour of his four sons. The properties covered by these gift deeds have been mentioned in detail in Schedule IV of the plaint. The defendant nos.2, 3 and the predeceased son, Nazir Ahmad in collusion with the scribe and attesting witnesses got created these registered gift deeds as such, the gift deeds are forged, fabricated and not executed by Haji Shafiullah. Haji Shafiullah was old and almost lost his mental capacity who was being looked after by the defendants. Haji Shafiullah died at the age of 95 years. He was under

by Haji Shafiullah are forged, fabricated and fraudulent document and were they brought into existence by practicing fraud, undue influence by defendants 2, 3 and Nazir Ahmad on Haji Shafiullah?

VII. To what relief or reliefs if any, is the plaintiff entitled?

7. The learned counsel, Mr. Bhupendra Narayan Sinha appearing on behalf of the appellants submitted that the learned court below has wrongly held that the property covered by Exhibit B/1 which is in the name of defendant no.1 is the self-acquired property of Haji Shafiullah. According to the learned counsel, the registered deed is dated 04.06.1944 and the plaintiffs specifically pleaded that it is the property of defendant no.1. The defendant no.1 also pleaded that it is his self-acquired property. According to the learned counsel, the Lower Court has mis-appreciated the evidences adduced by the parties and recorded a finding that the said property Patna High Court FA No.176 of 1976 dt.07-05-2013 acquired by registered sale deed dated 04.06.1944, Exhibit B/1 is the property acquired by Haji Shafiullah in the name of defendant no.1. So far the property acquired by the registered sale deed dated 07.02.1942 is concerned, it was the acquisition made by the four brothers and it was never the property of Haji Shafiullah. In such circumstances, Haji Shafiullah had no right to gift the properties covered by Exhibit B. Elaborating this point, the learned counsel submitted that in Mohammedan law, there is no presumption of jointness as is presumed in Hindu law. If the Mohammedan family members are living in commensality, it is not necessary that they form a joint family in the sense in which the term "joint family" is used with regard to Hindu family. Likewise, there is no presumption in Mohammedan law that if any acquisition is made in the name of any Mohammedan, it is made for the benefit of the joint family. However, the court below without following this principle wrongly held that the property covered by Exhibit B is the property acquired by Haji Shafiullah. The learned counsel further submitted that according to the defendant nos.2 and 3, all the properties covered by Exhibit B and B/1 are the self-acquired property of Haji Shafiullah but the court below has passed a conflicting judgment holding that the property through Exhibit B/1 is the self-acquired property of defendant no.1 whereas the property acquired by Exhibit B is the property acquired Patna High Court FA No.176 of 1976 dt.07-05-2013 by Haji Shafiullah. The learned counsel further submitted that there are overwhelming evidences adduced by the party to show that Haji Shafiullah was old enough and was unable to understand the affairs and the defendant nos.2 and 3 got the gift deeds executed by him by undue influence. The appellants also produced the documentary evidences to show that there was undue influence played by the defendant nos.2 and 3 but the court below on one ground or other, has disbelieved the evidences and materials and rejected the plea of the appellants to the effect that the 5 registered gift deeds are tainted with undue influence.

11. On the other hand, the learned senior counsel, Mr. Raghiv Ahsan appearing on behalf of the contesting respondents Patna High Court FA No.176 of 1976 dt.07-05-2013 submitted that the defendant no.1 filed Title Suit No.43 of 1964 wherein Haji Shafiullah was defendant. If the case of the plaintiffs is believed that Haji Shafiullah was physically and mentally unfit at the time of execution of the gift deeds in the year 1962, then defendant no.1 should have been made party through his friend or any guardian should have been appointed on the ground that he was not capable of understanding the affairs but Haji Shafiullah filed a separate contesting written statement on 27.08.1964. He executed the vakalatnama by himself. It is not the case of any party that he had not executed the vakalatnama or he has not signed the written statement and filed the same or that somebody impersonated him in the said case and it is not the written statement of Haji Shafiullah or that the vakalatnama is not executed by him or he was incapable of executing the vakalatnama. Therefore, if he was mentally sound and physically fit to execute vakalatnama and filed written statement in the year 1964, how can it be said that he was not mentally sound and physically fit in the year 1962. In written statement filed on 27.08.1964, he admitted that he had executed the registered gift deeds in favour of his four sons. When he himself admitted the execution of the registered gift deeds, there is no question of deciding the fact that the gift deeds were tainted with undue influence.

30. In the case of Sita Sharan Prasad vs. Manorma Devi, 2012(2) BLJ 165, this court has held that once plaintiff has chosen to file suit for declaration that sale deed be adjudged as sham and inoperative document, three years of limitation as provided in Article 58 or 59 would become applicable. In the said decision, the registered sale deed was under consideration which was challenged. Here, the difference is, the registered gift deed has been challenged. However, the same Article will apply for the relief claimed by the plaintiffs.