QUTUBUDDIN Vs. MANGALA DUBEY

JUDGEMENT

(1.) This is a plaintiff's appeal and arises from a suit for possession of two plots : Nos. 394-1 and 494, by ejectment of defendant 1, who claims it under a mortgage deed executed by defendant 2. The plaintiff and defendant 2 are recorded co- sharers of a "khata" in which the plots in suit lie. The trial Court decreed the plaintiff's suit so far that joint possession was allowed to the extent of 11-12. The lower appellate Court dismissed the plaintiff's suit.

(2.) The "khata" in which the plots in suit are situated originally belonged to one Makhdum Bakhsh. In 1906 he executed a deed of gift in respect of the entire khata in favour of his daughter's sons, Abdur Rauf and Muhammad Hanif. Makhdum Bakhsh subsequently died, leaving a daughter, Wasiha Bibi, and her two sons, the donees, Qutubuddin is the son of Zaibunnisa, daughter of Wasiha Bibi. Mutation of names was effected in favour of the donees, Abdur Rauf and Muhammad Hanif. The latter died, apparently un married, and his share devolved partly on his mother and partly on his brother and sister. The sister also died, leaving the plaintiff and her mother Wasiha Bibi as her heirs. Wasiha Bibi thus obtained a fractional share in the "khata" from her deceased son and daughter, though she got nothing on the death of her own father, Makhdum Bakhsh, who had gifted away the entire share to her sons. Abdur Rauf made a gift of his share to the plaintiff. Wasiha Bibi executed a deed of mortgage with possession to defendant 1 Mangala Dubey, in respect of plots Nos. 394-1, and 494. Thereupon the plaintiff instituted the suit which has given rise to this appeal for exclusive possession of the plots in dispute impugning, the deed of mortgage and the right of the mortgage to remain in possession of the plots which formed part of the undivided property of the plaintiff and Wasiha Bibi, from whom defendant 1 admittedly derives title. The suit was contested by defendant 1, who pleaded that the deed of gift under which the plaintiff claims title and which was executed by Abdur Rauf was fictitious and fraudulent and conferred no title on the plaintiff. The plaintiff had also impugned the mortgage relied on by defendant 1 on the ground that Wasiha Bibi did not intelligently execute it in favour of defendant 1 nor did she receive any consideration in respect thereof.

(3.) Both the lower Courts have concurrently found that the mortgage deed in favour of defendant 1 is perfectly valid. This finding must be accepted, and defendant 1 should be treated as a mortgagee with possession from Mt. Wasiha Bibi. The lower appellate Court upheld the defence as regards the validity of the deed of gift in favour of the plaintiff. It is somewhat difficult to ascertain the exact finding of that Court on this part of the case. It is alleged on behalf of the respondent that the finding amounts to a declaration that the deed of gift was void. I shall advert to this question presently.