MOHAMMAD SAID Vs. MOHAMMAD HANIF

JUDGEMENT

(1.) This is a second appeal by defendant 1, Mohammad Said, against a decree of the lower appellate Court which upheld a decree of the Court of first instance, granting the plaintiff Mohammad Hanif joint possession over a certain house along with defendants 1, 7 and 9. The lower appellate Court specified that the extent of the plaintiff's share in the house in dispute was 7? annas out of 16 annas, and further it was specified that of this 7? annas 4 anna came to the plaintiff by inheritance as heir of his father Niamat Ali and 34 annas came to-the plaintiff by a deed of gift from defendant 8, Abdul Hakim executed on 10 January 1927. This deed of gift was of the whole house, and in the plaint the plaintiff set up the case that Niamat Ali and Wazir Ali were two-brothers, and there was a partition between them and the house in question fell to the share of Wazir Ali, and after his death his son Abdul Hakim, defendant 8, obtained sole possession of the house and repaired it and rebuilt it and became entitled to it against the other heirs of Wazir Ali and eventually made a gift of the whole house to the plaintiff. The case for defendant 1, the appellant, who was not one of the heirs of Wazir Ali or Niarhat Ali, was that the house had been given to him by an oral gift seven years before the suit by defendants 4 to 9, and that defendants 4 to 9 bad been in possession on the death of Wazir Ali and Niamat Ali. The following pedigree will be useful for understanding the case:

(2.) The questions which are set forth by the lower appellate Court in its judgment as argued before it were as follows: 1. Whether the plaintiff was the son of Niamat Ali? 2. Whether Abdul Hakim and the other co-sharers had made any oral gift in favour of defendant 1; if so, what is the effect of the deed of gift executed by Abdul Hakim in favour of the plaintiff?

(3.) What is the extent of the share which the plaintiff gets by the decree for joint possession? 3. On these questions the finding was that the plaintiff was the son of Niamat Ali, that Abdul Hakim and the other co-sharers had not made any oral gift seven years ago in favour of defendant 1, that the deed of gift of 10 January 1927 by defendant 8, Abdul Hakim, in favour of the plaintiff, was valid be the extent of the share of Abdul Hakim only which was 3? annas, and that the plaintiff got four annas as the son of Niamat Ali and 3? annas as the donee of Abdul Hakim.