AVULLA HAJEE Vs. MAMMU

JUDGEMENT

(1.) The first defendant is the appellant in the Second Appeal and the point to be considered is as to whether a gift deed executed by one Moideen Haji namely, Ext.- Al is hit by the doctrine of Mushaa.

(2.) One Moideen Haji who was admittedly owning only a half share in a property, along with his brother the first defendant, executed a gift on 23-8-1930, Ext.- A1 in favour of his first wife the third defendant herein, and her then existing children namely, the plaintiff and defendants 2, 4 and 5 & one Ibrayi. According to this gift deed, he has transferred his entire half share that he had in the suit properties, in favour of his wife the third defendant and her children mentioned above. On 22-3-1934, Moideen Haji and the second defendant, one of his daughters executed a document of assignment namely, Ext.- B6 in favour of the first defendant herein for a sum of Rs. 800/-. The recitals in the document will be considered a little later in this judgment when considering the substantial question that arises for decision in this Second Appeal.

(3.) Now the present suit has been filed by the plaintiff, one of the children of Moideen Haji and the third defendant on the basis of the gift deed, Ext.- Al and he claims in these proceedings a partition and separate possession of his 43/468 share in the suit properties.