RASHID Vs. MST BATULAN BIBI

JUDGEMENT

(1.) This appeal is sought to be supported on two grounds. In the first place it has been pressed upon me that the oral gift relied upon by defendant-respondents 1 and 2 was in effect a sale as it had been made in lieu of dower debt. It was urged that the alleged gift being of property of a value of more than Rs. 100/- is required to be registered and could not be taken into consideration in view of Section 54, T. P. Act. and Section 49, Registration Act.

(2.) It is next submitted that the finding recorded by the court of appeal with regard to the alleged gift is perverse as it is not supported by any reliable evidence.

(3.) The facts of the case lie in a narrow ambit. One Kadir left behind five sons including the plaintiff-appellants Rashid and Majid. Hamid was the third son who died issuless leaving behind a widow Smt. Batulan, who was impleaded as defendant 1. Mukhtar and Umar were the remaining two sons of Kadir. Out of them Mukhtar has been implead-ed as defendant 3. Umar had died earlier and his two sons Izharul and Hakim are defendants 4 and 5, respectively. The second defendant in the suit was Smt. Sadiqa Bibi. Plaintiff-appellants allege that the house in dispute was ancestral property of the parties having been acquired by Kadir. It was disclosed in the statement of claim that Smt. Batulan had only 2/40 share in the house in dispute whereas the remaining 38/40 share in the same belonged to plaintiff-appellants and defendants 3 to 5. It was alleged that Smt. Batulan had transferred the entire house in dispute to Smt. Sadiqa Bibi by means of a sale deed dated Feb. 3, 1962 in spite of the fact that the executant of sale deed was only a fractional owner of the property. The relief sought by the plaintiffs was that 38/40 share in the house in dispute may be separated by metes and bounds and separate possession of the same may be awarded to them. It is evident from the relief as stated above that the plaintiffs claimed a decree for partition not only on their own behalf but also on behalf of defendant-respondents 3 to 5.