MAHMUD FATIMA Vs. PARBATI KUNWAR

JUDGEMENT

(1.) The facts of this case are shortly as follows: One Kazi Ahmad Husain who was the owner and in possession of the entire village of Yasinnagar and also of a 10 biswa share in the village of Khardauli and of some bighas of resumed muafi land in another village, died on the 2 August, 1892, leaving his widow, the first defendant, and the defendants Husain Ahmad and Muhammad Ahmad, two sons, and the plaintiffs, his two daughters, him surviving. After his death in satisfaction of a decree obtained by one Gandharp Singh 5 biswas of Yasinnagar and 5 biswas of Khardauli and a third of the muafi land were foreclosed and possession delivered over to the judgment-creditor. Later on, namely, on the 18 of January 1899, a further share in the village of Yasinnagar was sold by the widow and two sons to the defendants 6, 7 and 8 and another party, the ancestor of the defendant 5. Again, under a sale-deed, dated the 25 of July 1904, a 5 biswa share in the village of Khardauli was transferred to the defendants 5 and 7. The suit out of which this appeal has arisen was instituted on the 12 of September 1904, by the plaintiffs as two of the heirs of Ahmad Husain to recover from the defendants 14 out of 48 sihams of the property which had passed into the hands of the judgment-creditor and transferees respectively under the decree and deeds of transfer to which we have referred.

(2.) The Court of first instance decreed the plaintiff's claim and the lower appellate Court upheld the decision of the Court of first instance.

(3.) This appeal has been preferred on two grounds, the first being that the suit is bad for misjoinder of causes of action, and the second that an application made for mutation of names during the life-time of Kazi Ahmad Husain on the 28 of June 1892 was admissible in evidence, and clearly established that a gift of the whole village of Yasinnagar had been made by Kazi Ahmad Husain to his widow and two sons, and that therefore the plaintiffs had no interest in this village.