ZUHRA BANO Vs. ZUHRA KHATOON

JUDGEMENT

(1.) THIS Civil first appeal is directed against the judgment and decree dated 4 -9 -1986, passed by the learned Single Judge (Mr. Justice Kuchhai), declaring that: (1) the respondent No 1/plaintiff is the daughter khana nishin of defendant No. 1 (2) That the said defendant had gifted half of the property to her as mentioned in Para 12 of the plaint; (3) that she is entitled to such gifted property; and (4) that possession of such property shall be given to her.

(2.) THE plaintiffs suit briefly stated was that initially her mother professed Budhist -religion and after conversion to Islam, she contracted a marriage with the defendant No. 1, and they belonged to Shia sect of the Muslims. She was born out of the wedlock of the defendants 1 and 3, i.e. her father and mother. The defendant No. 1 brought her up and also brought a khana damad for her treating her as khana nishin daughter. He also gifted half of his property to her. The defendant No. 1 lateron divorced the plaintiffs mother and contracted another marriage with another woman. The plaintiff, however, continued to live with her father till her step mother influenced him to turn her out from his house. The property gifted to her, however, remained with her father. The defendant No. 3 had given ornaments worth Rs. 6,000/ - to defendant No. 1 for her marriage also. A gift memo was also drawn up by the defendant no. I in her favour, at the time of making of the gift. After turning her out from his house, tha defendant No. 1 made a fictitious sale deed In favour of defendant No. 2 so as to deprive her of her share of the property. He also made a will of the property in favour of Mst. Fatima, his second wife. She has, therefore prayed for a decree for declaration and possession for her share of the property.

(3.) IN his written statement, the defendant No. 1 has, admitted that the defendant No. 3 was his wife and both of them belonged to Shia Sect of Muslims. He has, however, denied that the plaintiff was his daughter, muchless, a Khana -nishin daughter. He has also denied that they were governed by custom. He has not admitted that he had gifted away any share of his property to the plaintiff. He has admitted that the defendant No: 3 was divorced by him validly. He has also admitted to have sold out some property to defendant No: 2. He has denied to have made any will in favour of Mst. Fatima, his second wife. The following issues were framed in the case: