HUSSAINA BAI Vs. ZOHRA BAI

JUDGEMENT

(1.) This is a plaintiffs appeal from the decree of the Court of the Additional District Judge, Khandwa, in civil suit No. 45-A of 1951, dismissing her claim fo possession and future mesne profits.

(2.) The plaintiff Hussainabai is the daughter of the defendant's sister Asmabai (P.W. 5) who is the wife of one Nomanali. The defendant was married to Shamsherali of Nagpur who had considerable property. Shamsherali had a daughter Zainabbai by his former wife but had no issues from the defendant. It appears that the defendant took fancy for the plaintiff and brought her up from her infancy. The plaintiff was married to Kadarbhai of Bombay but was divorced in the year 1946. Shamsherali died in 1944 after executing a deed of settlement dated 24th March 1944 (Exh. P. 23) by which he demised the bulk of his property to his daughter Zainabbai and gave two houses, one of Nagpur and the other of Burhanpur, to the defendant. The defendant was also given the net profits from rents of another house at Nagpur till her death or remarriage, whichever took place first.

(3.) The plaintiff claimed two houses given to the defendant viz., one of Nagpur and the other of Burhanpur, on the strength of a gift deed (Exh. P. 14), dated 28th January' 1947, which admittedly bears the signature of the defendant. That document recites that the gift was made in lieu of affection. It also recites the following: "Now you are in the sole possession and can do anything. You get it entered in your name and I would also get that done." The document was scribed in Hindi by Baldeo (P.W. 6) who is a petition-writer of Burhanpur. It was attested by Salehbhai (P.W. 9), who is the plaintiff's uncle, and by Mohmmad Ali alias Mohammad Hussain (P.W. 7), who is the son of the plaintiff's father's sister. The document was scribed, executed and registered in the house of Asmabai (P.W. 5), mother of the plaintiff: It is also not in dispute that subsequently the defendant revoked the gift by a registered notice, dated 26-4-1948, (Exh. D-21), and latterly executed a registered document, dated 29 May 1950, (Exh. D-24), cancelling the deed of gift.