BIBI SALEHA Vs. ZAKARIYA KHAN

JUDGEMENT

(1.) This appeal is directed against a decision of the Additional District Judge of Patna reversing a decree of the Additional Subordinate Judge of Patna. The appellants were defendants 1 to 5 in the suit.

(2.) The appeal arises out of a suit brought by one Zakariya, respondent 1, for the declaration of his eight-anna share in holding no. 124 in mohalla Bakarganj of Patna City consisting of four blocks of residential houses and seventeen Katras (small shop buildings) formerly belonging to one Bibi Amani Jan, and for a declaration that Amiruddin, the husband of defendant 1 and the father of defendants 2 to 5, did not acquire any title to this property under the registered deed of gift dated 2nd of July 1920, executed in his favour by Mt. Amani Jan. There was also a prayer for confirmation of possession and, in the alternative for recovery of possession. Bibi Amani Jan was the sister of Alamgir Khan, the father of plaintiff Zakariya. She had a sister, Mt. Muhamadi Jan, who had three sons, Amiruddin, who has just been mentioned, Zamiruddin (defendant 6) and Bashiruddin, whose widow is defendant 8. Mt. Amani Jan died in 1936. According to the plaintiff, he succeeded to eight annas share in her property, the other eight annas going to Mt. Muhamadi Jan, who transferred two annas share to defendant 8 and the remaining 6 annas share was inherited by Zamiruddin on the death of Muhamadi Jan. The plaintiff's case is that, after the death of Amani Jan's husband Mian Khan in 1917, her affairs were being managed by Amiruddin, and that he fraudulently got the deed of gift executed by her by giving the impression that it was a mukhtarnama in his favour. The validity of the deed of gift was also attacked on the ground that Mt. Amani Jan remained in possession of the property till her death, and that there was no delivery of possession to the donee as required for the validity of a gift under the Muhammadan law.

(3.) The defence naturally was that the deed of gift was executed knowingly by Amani Jan, and that, as Amani Jan was treating Amiruddin as her son and he was living with her, there was no delivery of possession by actually vacating the premises, but effect was given to the gift by allowing Amiruddin to get himself registered in the municipal papers as the owner of the house. Also, subsequently, Amiruddin executed a hin hevati mokarari deed in favour of Mt. Amani Jan, who continued to occupy the property in this capacity.