(1.) This appeal arises out of a suit for a declaration of the plaintiff's raiyati title and for recovery of possession of the lands described in the schedules to the plaint. The case of the plaintiff was that the lands had been gifted to her by her mother Hadya Bibi by means of a hebanama. The case of the defendant was a denial of the plaintiff's title.
(2.) The first Court decreed the plaintiff's suit in a modified form. The plaintiff's title in kayami mukarrari right to plot (ka) measuring 12 1/2 gundas and to the disputed land described in Schedule 2 was declared and she was to get ejmali possession of these lands with the defendants. Defendants 1 (ka), 1 (kha) and 1 (gha) appealed to the District Court and there was also an appeal by the plaintiff. The District Court ordered the decree of the first Court to be modified to this extent: that the decree should be for exclusive possession of the lands of Schedule 2 of the plaint; and in the other lands the decree made by the first Court to the extent of the plaintiff's share for ejmali possession with the defendants was to stand. Neither of the lower Courts determined the question of the plaintiff's share in 12 1/2 gundas land in which she was to get ejmali possession with the other defendants. Defendants 1 (ka), 1 (kha), 1 (ga) and 1 (gha) have appealed to this Court.
(3.) The appellants have raised three points : first of all, that the gift of an undivided share is bad as it offends against the Mahomedan doctrine of mushaa; secondly, that it is neither alleged nor proved that the gift was accompanied by delivery of possession; and lastly, that the decree of the lower appellate Court is in vague terms and that the lower appellate Court should have determined the question of share.