1. This is an appeal by the defendants Nos. 2, 4 and 5 against the judgment and decree of the learned Subordinate Judge of Chittagong, dated the 22nd January 1916, modifying the decision of the Munsif of Hathazari. The suit was instituted by the plaintiff for possession on declaration of title, the plaintiff claiming an interest in the property as one of the heirs of his deceased wife. It appears that the original owner of the property was one Ashad Ali. He died leaving a widow, two daughters and a grandson by a predeceased son. One of these two daughters was the wife of the plaintiff. She survived her father and the plaintiff claims through her. The defence raised was that Ashad Ali had given away the property by five kobalas; that is, deeds of sale. The first Court found that the kobalas were gifts up to the extent of 1/3rd. The lower Appellate Court reduced the share to which the first Court found the plaintiff was entitled to 2 1/3 annas of the whole. It is quite clear that the learned Judge of the lower Appellate Court had no regard to the fact that the shares that the mother of the deceased wife of the plaintiff and the sister of the deceased wife of the plaintiff would take under the Muhammadan Law could exceed unity and that, according to a rule laid down under the Muhammadan Law, it was necessary to reduce the fractions that the parties would take. The learned Judge found that the plaintiff inherited from his wife 1/2 of 1/3rd. That is net so. What he inherited from his wife was 1/8th and, on that footing, he will get 2 annas instead of 2 2/3 annas as decreed by the lower Appellate Court.
2. Then the next point raised was as regards one of the kobalas which was given by Ashad Ali to his wife in satisfaction of her dower. It is not denied that there was a dower deed in favour of Ashad Ali's wife. Apparently something was due on that. Inadequacy of the consideration that was given does not seem to have affected the matter. If, in fact, the husband obtained a release from payment of the dower money by handing over certain properties to the wife, then there was sufficient consideration for the deed.
3. The other matter raised in the appeal is as to what have been called the Schedules 2 and 3 properties; that is, the properties mentioned in Schedules 2 and 3 of the plaint. The case set up by the appellant as regards this is this. Those properties were purchased by the son of Ashad Ali who predeceased him, in execution. It is said that the purchase was in the name of the son of Ashad Ali who predeceased him as the benamdar for his father. It is, therefore, contended that Section 66, Civil Procedure Code, prevents the plaintiff from raising any claim to these lands. This matter was not a matter that was gone into in the lower Appellate Court, and it is impossible for us to tell what are the facts relating to this matter unless it is gone into by the Courts below. We are not disposed to allow this matter to be re-opened at this stage. As regards this matter, the appeal will be dismissed.
4. In the result, the plaintiff will be held entitled to a 2 anna share of the properties, except the properties comprised in the kobala to the widow of Ashad Ali which were given to her in lieu of her dower and also the properties in respect of which the plaintiff has obtained leave to withdraw the suit. We make no order as to the costs of this appeal.