AFTAB HUSAIN Vs. TAYABBA BEGAM

JUDGEMENT

(1.) THIS is a defendants' second appeal and arises from the judgment and decree dated 21-8-1962 passed by the District Judge, Sitapur, upholding the judg ment and decree of the Civil Judge, Sitapur. The material facts are briefly as follows:

(2.) PLAINTIFF -respondent Smt. Tayyaba Begam filed a suit for partition in the Court of the Civil Judge in respect of her 1/3 share in three houses Nos. 138, 140 and 144 situ ate in Mohalla Shaikh Sarai, district Sita-pur. It is an admitted fact that the houses in dispute originally belonged to Munshi Ali Mohammad who died in 1929. He had two wives, the first wife having died during his lifetime and on his death the second Wife Smt. Afsari Begam survived. The plain tiff-respondent Smt. Tayyaba Begam is the daughter and Sheikh Aftab Hussain defen dant-appellant No. 1 is the son of Smt. Af sari Begam who has also since died. The plaintiff and defendant No. 1 are admitted ly the sole heirs of the deceased lady. It is further an admitted fact that after the death of Munshi Ali Mohammad, Smt Afsari Be gam, Sheikh Aftab Hussain, Smt. Najafi Be gam, daughter of the first wife and Smt Tayyaba Begam (plaintiff) were his sole heirs and inherited 1/8th, 14/32nd, 7/32 and 7/32nd shares respectively. During the lifetime of Smt. Afsari Be gam Smt. Najafi Begam executed a deed of gift on 9-9-1932 in respect of her 3 annas 6 pies share in respect of houses Nos. 138 and 144 in favour of one Smt. Sajjad Bano and the latter in her turn sold this share in the houses to Smt. Madani Begam, the de ceased mother of defendants-respondents Nos. 2 and 3 Sheikh Abid Raza and Sheikh Asghar Raza, Defendants Nos. 2 and 3 claimed ownership in the two houses to the extent of 3 annas 6 pies share on the basis of the gift deed executed by Smt. Afsari Be gam (sic) (Najafi Begam?) in favour of Smt Sajjad Bano and the subsequent sale by the latter in favour of their mother Smt. Ma dani Begam. They alleged that two years after the death of Munshi Ali Mohammad his widow Smt. Afsari Begam had entered into possession of the two houses in lieu of dower debt with the consent of all the heirs of Munshi Ali Mohammad. She died in 1947 and according to them her entire dower debt will be deemed to have been paid off from the usufruct of the houses. Both the plaintiff-respondent and defen dant-appellant No. 1 had disputed the title of defendants Nos. 2 and 3 and their mother Smt. Madani Begam as also that of Smt. Sajjad Bano on the ground that the gift deed related to undivided share in the houses and was invalid because it was bit by the doc trine of Mushaa and was not followed by delivery of possession in favour of donee Smt. Sajjad Bano and as no valid title was conveyed to her she was incompetent to transfer any share in the houses by sale to Smt. Madani Begam, mother of defendants Nos. 2 and 3. It was further claimed by the plaintiff that Rs. 2000/- were paid by her husband towards certain debt of Munshi Ali Mohammad and defendant No. 1 also claimed having paid Rs. 1500/- towards cer tain debts of Munshi Ali Mohammad. Both the plaintiff and defendant No. 1 claimed adjustment for the said amounts at the time of partition. There was yet another plea raised by appellant-defendant No. 1 and ft was that Smt. Afsari Begam had perfected right to the 3 annas 6 pies share which was claimed by Smt. Sajjad Bano under the gift deed because she remained in possession over houses Nos. 138 and 144 hostile to her and to defendants Nos. 2 and 3. Smt. Mash-kura Begam defendant No. 4 and appellant No. 2 before this Court had set up an oral gift in her favour by Smt Afsari Begam in respect of house No. 144 and claimed ex clusive ownership of the house on that basis.

(3.) IN appeal the findings and judg ments of the trial Court were upheld and the appeal was dismissed. It is in these cir cumstances that defendants Nos. 1 and 4 have come in appeal before this Court.