In the Supreme Court of Bangladesh                 High Court Division

        (Civil Revisional Jurisdiction)

                       Present:

Mr. Justice Muhammad Abdul Hafiz

CIVIL REVISION NO. 513 OF 2011

Md. Jamal Uddin being dead his legal heirs: 1(a) Jobena Khatun and others Defendant-Appellant-Petitioners

Versus

Most. Rokeya Khatun and others Plaintiff-Respondent No.1-Opposite Party No. 1

Most. Fatema Khatun and others Proforma-Opposite Parties

Mr. Md. Zafar Sadek, Advocate

for the Defendant-Appellant-Petitioners

Mr. Shameem Haider Patwary, Advocate for the Opposite Party No. 1

Mr. Abdur Razaque Khan, Senior Advocate with

Mr. Hasan Rajib Prodhan, Advocate

for the Opposite Party Nos. 14-15

                                  Judgment on: 12.7.2023 This Rule was issued calling upon the opposite party No. 1

show cause as to why the impugned Judgment and Decree dated 29.7.2010 passed by the learned Joint District Judge, 1st Court, Lalmonirhat (In charge) in Other Class Appeal No. 19 of 2007 affirming with modification of those dated 18.2.2007 passed by the learned Assistant Judge, Aditmari Court, Lalmonirhat in Other Class Suit No. 17 of 2003 decreeing the suit in part should not be set aside and/or such other or further order or orders passed as to

this Court may seem fit and proper.

The opposite party No. 1 as plaintiff instituted Other Class Suit No. 17 of 2003 before the learned Assistant Judge, Aditmari Court, Lalmonirhat against the present petitioner and proforma opposite parties for partition with a further declaration that the Talak Nama dated 13.6.1982 being No. 3 of 1982 under the Registry Office, Barua, Police Station Patgram, District Lalmonirhat is collusive, void and not binding upon the plaintiff.

The Case of the plaintiff, in short, is that the 'Ka' schedule land belongs to the late Safor Uddin and S.A. Khatian Nos. 42 and 6 were duly recorded in his name and while in possession in the suit land the said Safor Uddin out of 2.10 acres of land of S.A. Dag No. 313 measuring 90 decimals and from S.A. Dag No. 114 out of 1.68  acre the land 1.0650 acres total 1.9650 acres of land transferred in favour of 2 sons namely Hafej Uddin and Jamaluddin by way of Heba Bil Ewaj deed and handed over the possession. Thereafter Safor Uddin died leaving behind one wife Abejan Bewa who succeeded, 3650 decimals of land, 3 sons namely Hafejuddin, Shahbuddin and Jamaluddin .50 decimals succeeded by each and 4 daughters also succeeded 26 decimals each. Thereafter Shahabuddin died leaving behind one wife as defendant No. 6 and 02 sons defendant Nos. 7 and 8 and 5 daughters as defendant No. 9 to 13 and all of them succeeded the share of late Shahabuddin. Thereafter Abejan Bewa while possessing .61 decimals died leaving behind sons and daughters and the defendant Nos. 1-5 are the heirs of Saforuddin being born in the womb of their first mother and defendant Nos. 7 and 13 were born in the womb of the second wife of Saforuddin. The plaintiff was the legal wife of late Hafej Uddin and after his death she got married to another person Shah Alam Mia and in this way the plaintiff along with the defendant are in possession in the disputed land. The plaintiff being legal heir of her first husband late Hafej Uddin she claimed for .37 decimals of land for partition in favour of the plaintiff but on 16.3.2003 she was refused by the defendant to do the same. It is the further case of the plaintiff that since the defendant No. 1 in his written statement claimed a Talak Nama dated 13.6.1982 being Number 3 of 1982 was given by the late Hafej Uddin to the plaintiff during his life time and as such the plaintiff instituted the present suit for partition claiming .37 decimals of land as well as for a declaration that the Talak Nama dated 13.6.1982 issued by late Hafej Uddin in favour of the plaintiff is collusive, void and not binding upon the plaintiff.

The defendant No. 1 contested the suit by filling a separate written statement denying the plaint case contending, inter alia, that Hafej Uddin on 15.2.1976 vide registered Talak Nama being No. 3 of 1982 divorced the plaintiff. The plaintiff during the life time of Hafej Uddin remarried Shah Alam and continued conjugal life and Hafej Uddin after divorce and being childless died leaving behind his mother Abejan Bewa, 03 (three) sisters and step brother defendant No. 1 and thereafter three sisters of late Hafej Uddin vide Registered Sale Deed No. 5717 transferred 1.06 acres of land in favour of the defendant No. 1. Thus the defendant No. 1 by way of succession and purchase got 3.26 acres of land and subsequently transferred some portion of land in favour of some persons. The defendant No. 1 by filing an additional written statement denied the claim of the plaintiff that the said Talak Nama was not created and late Hafej Uddin being dissatisfied with the misbehavior of the plaintiff ultimately divorced her and thereafter completion of Iddat period the plaintiff remarried Shah Alam and he prayed for dismissal of the suit as well as prayed for Saham.

The defendant Nos. 15-27 also contested the suit by filing a joint written statement adopted the statements of plaint of the plaintiff and contending, inter alia, that the defendant No. 1 transferred 1.06 decimals of land in favour of this defendants and also transferred .2550 decimals of land and .04 decimals of land in favour of the present defendants by different sale deeds. The defendant Nos. 15-27 prayed for their respective Shaham before the Trial Court.

The defendant Nos. 7 and 8 also contested the suit by filling

a joint written statement adopted the case of the plaintiff contending, inter alia, that being legal heirs of Shahabuddin the present defendants succeeded .48 decimals of land and thereafter .48 decimals of land has been transferred by different subsequent sales the present defendants are in possession of .17 decimals of land and they prayed for Shaham before the Trial Court.

The defendant Nos. 14 and 15 also contested the suit by filling a joint written statement adopted the case of the plaintiff by way of purchase they obtained .20 decimals of land and they also prayed for Shaham in respect of .20 decimals of land.

The defendant Nos. 16, 18, 19, 21 and 22 also contested the suit by filing a joint written statement and also adopted the case of the plaintiff contending inter alia that by way of purchase from different dates from the heirs of Shahbuddin the present defendant became of the owner of .37 decimals of land and they also prayed for Shaham in respect of .37 decimals of land.

The learned Assistant Judge, Aditmari Court, Lalmonirhat decreed the suit in part vide judgment and decree dated 18.2.2007 in Other Class Suit No. 17 of 2003.

Against the aforesaid judgment and decree the defendant No. 1 as appellant preferred Appeal being Other Class Appeal No. 19 of 2007 before  the learned  District Judge, Lalmonirhat  and thereafter which was transferred before the learned Joint District Judge, 1st Court, Lalmonirhat who disallowed the Appeal vide Judgment and Decree dated 29.7.2010 and thereby affirmed the Judgment and Decree dated 18.2.2007 in Other Class Suit No. 17 of 2003 passed by the learned Assistant Judge, Aditmari Court, Lalmonirhat.

Being aggrieved by and dissatisfied with the impugned judgment and decree the defendant-appellant as petitioner moved this application under Section 115(1) of the Code of Civil Procedure, 1908 before this Court and obtained this Rule.

During pendency of the Rule petitioner Jamaluddin died and his legal heirs were substituted.

Mr. Md. Zafar Sadek, learned Advocate for the defendant- appellant-petitioners, submits that in support of divorce by late Hafej Uddin to the plaintiff the D.W. 2 Md. Mahbubur Rahman concerned Officer of the said Nikah and Talak Registry Office of Patgram who also adduced the volume of the said Registered Talak Nama dated 13.6.1982 and the same was marked as an Exhibit-Ga and it will appear from the judgment of the Court below who upon total non-consideration of the evidence of D.W.2 as well as the Exhibit-Ga concurrently found that the said Talak Nama is not a genuine one and thus gave respective Shaham in favour of the plaintiff declaring the same as collusive, void and not binding upon the plaintiff and as such the judgment of both Courts below seriously suffers from non-consideration of evidence of D.W. 1 and D.W. 2 and thus committed an error in the decision occasioning failure of justice. He further submits that where the plaintiff being legal heir of her first husband late Hafej Uddin claim for her share and whereas she merely examined P.W. 2 and 3 in support of her claim that the said Talak Nama is collusive, created and not binding upon her but in spite of submission of volume of the said Talak Nama and as per Section 62 of the evidence Act and the said Exhibit Ga is more valuable than the evidences of P.W. 2 and 3 and the Courts below upon misconception of the aforesaid Section of the Evidence Act decreed the suit and disbelieved the Talak by late Hafej Uddin in favour of the plaintiff. He lastly submits that this is the settled principle of Muslim Law of inheritance that a divorced wife is not entitled to get any share of her previous husband but in the instant case in spite of adducing oral and documentary evidences in support of divorce by late Hafej Uddin to the plaintiff on behalf of the defendant No. 1 but both the Courts below upon misconception of law disbelieved the said divorce and gave the plaintiff her respective share of her first husband treated her being legal heir and thus both the Courts below committed an error in the decision occasioning failure of justice.

Learned Advocate Mr. Shameem Haider Patwary appearing

with Md. Ali Reza Mohammad Suzauddowla, learned Advocate and Md. Mizanur Rahman, learned Advocate appearing for the plaintiff-opposite party  No. 1 has  made submission  and placed both oral and documentary evidence as adduced by both the parties and formulated point: 

1.     The  Muslim  Family  Law  Ordinance,  1961  expressly imposed mandatory obligation to give notice in writing who wishes to divorce his wife in following terms:-
   7.    (1) Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of Talak in any form whatsoever, give the Chairman notice in writing of his having done so, and shall supply a copy thereof to the wife.
2.    Considering  the  case  records  along  with  defendant witnesses deposition it would be crystal clear that no written notice  was  issued  to  legalize  the  so  called  Talak  Nama. Defendant witness No.1 (son of the Defendant No. 1) clearly admitted  during  cross  examination  that  “

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101. Defendant  witness  No.  2  (From  Qazi  Office)  clearly admitted  that  the  ‘thumb  mark’  is  vague  during  cross examination “DW-2”
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4.    Plaintiff  Witness  Nos.  2  and  3  strongly  denied  any suggestion in relation to divorce between late Hafez Uddin and this plaintiff “PW2 and PW3 p¡rÉ

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5.     After  carefully  considering  witnesses  depositions,  learned Trial Court justly and fairly observed that

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6.      Furthermore,  after carefully  considering  case  records  and witnesses depositions Courts below concurrently observed that   r a¥Él r r r

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The  learned  Advocate  submits  that  the  plaintiff  opposite party No. 1 has duly proved her entitlement to inherit the property of her late husband Hafej Uddin and submits that the plaintiff- opposite party No. 1 sought for partition claiming 37 decimals of land.

On  behalf  of  the  opposite  party  No.  14  and  15  learned

Senior Advocate Mr. Abdur Razaque Khan submits that both of them have been given Saham by the Trial Court and affirmed by the Appellate Court below to the extent of .20 decimals of land which is the land acquired by 3 Saf Kabala deeds executed and registered by heirs and transfer of late Saforuddin and in the instant revisional application the defendant-petitioner has not made any statement against them and their share of land and thus no interference is called for.

Considering the facts and circumstances of the Case, I find no substance in this Rule.

In the result, the Rule is discharged without any order as

to costs.

The impugned Judgment and Decree dated 29.7.2010 passed by the learned Joint District Judge, 1st Court, Lalmonirhat (In charge) in Other Class Appeal No. 19 of 2007 affirming with modification Judgment and Decree dated 18.1.2007 passed by the learned Assistant Judge, Aditmari Court, Lalmonirhat in Other Class Suit No. 17 of 2003 decreeing the suit in part is hereby affirmed.

Send down the lower Court's record with a copy of the Judgment to the Courts below at once.

BO-Monir