MAQBUL HUSAIN Vs. GHAFFUR-UN-NISSA

JUDGEMENT

(1.) This appeal arises in a suit brought by the plaintiff for possession of certain property and for revocation of a deed of gift in respect of it executed by her in favour of the defendant-appellant. Her case as set forth in the plaint was that she had no counsellor or adviser except the defendant, that the defendant had induced her to make the deed of gift in his favour, having led her to believe that he would always remain obedient and faithful to her and would defray all her expenses. It has been found by both the Courts below that the plaintiff was a ware of the terms of the deed of gift and that no fraud has been proved. We cannot, however, overlook the fact that by the gift she denuded herself of everything she had and left herself completely at the mercy of the defendant. Under such circumstances very clear and cogent evidence should have boon given to show that she understood the nature of the transaction and its effect upon her interests. Under the Muhammadan Law, by which the parties are governed, a donor has a right to. revoke a gift except in the cases specified at page 152 of Volume I of Ameer Ali s Muhammadan Law. The defendant-appellant contends that this case falls within the purview of Clause (f), viz., that the subject-matter of the gift hah altered in substance in the possession of the donee. What happened was this : according to the Court of first instance two villages comprised in the gift had been partitioned at the instance of the defendant before the institution of the suit, and for this reason that Court excluded those villages from the operation of its decree. The lower Appellate Court held that only one village had been partitioned before the suit was filed and excluded that village only from the decree. We are unable to agree with the view of the Courts below in this respect. There has, in our opinion, been no substantial alteration of the subject-matter of the gift in the possession of the donee. The property at one time formed part of a bigger mahal : by partitions smaller mahals have been formed, and the property in dispute is now part of one of the smaller mahals. The only difference is that the plaintiff has become a co- sharer of a smaller mahal instead of the bigger mahal. There has been no alteration in the nature of the property. The property exists where it was. We think that the Courts below have erred in holding that the gift could not be revoked by the plaintiff.

(2.) One other point was raised on behalf of the appellant, viz., that house No. 1320 had not been claimed in the plaint. This is true, but this house is included in the deed of gift and the plaintiff sought to set aside the whole gift. In the lower Appellate Court the point does not seem to have been pressed and, in our opinion, there is nothing in it.

(3.) The result is that we dismiss the appeal and, allowing the objections filed on behalf of the respondent, decree the plaintiff s claim in full. Having regard to the fact that the plaintiff gave fasle evidence in the Court of first instance and tried to support her claim by untrue evidence, we direct the parties to bear their own costs in all Courts.