MAYADAD KHAN Vs. HAZARILAL

JUDGEMENT

(1.) (After stating facts as above the judgment proceeded). It is asserted that when Amir Khan died, Mangal Khan had a two annas share as well as 1/4th share of the other two annas share, viz., 6 pies, or 2 annas 6 pies in all. Shahnurbi died in 1909 and then Maugal Khan thus further obtained a quarter-of-an-anna share, i.e., 3 pies. Thus the appellants so far admit that Mangal Khan was owner of a 2 annas 9 pies share on the date of the mortgage, and the dispute is in reality only about the remaining 1 anna 3 pies share to which, on the appellants' case, Mangal Khan had no title.

(2.) I now tarn to the lower Court's finding on issue 10, wherein the District Judge holds that Mt. Shahaurbi transferred her share to Mangal Khan. The oral evidence ofiered by the defendants was held by the District Judge to be unsatisfactory on the point and apparently the documents (D. 1, D. 2 and D. 3) were so solely relied on for the said finding. The District Judge apparently assumes that the mere fact that Mt. Shahnurbi asked that her share should be recorded in Mangal Khan's name was equivalent to an out and-out transfer by her to Mangal Khan. I do not think that D. 1, D. 2 andi D. 3, when read in the light of the circumstance? prevailing at the time, can properly bear this construction. Mangal Khan and Mt. Shahnurbi were then husband and wife. The former in his statement (D. 1) describes himself and Shahnurbi as in joint possession and asked for his name to be recorded on the ground that, after consulting his wife, she had agreed to this. The latter in her; statement (D. 2) made no specific statement that she was transferring her title in the property and merely said she wanted mutation in her husband's name.

(3.) THE lower Court's finding on issue 11, viz., that Mangal Khan had acquired a title as against his sons by adverse possession, also seems to be a faulty one. The father was the natural guardian of his sons and maintained them out of the common fund. All dined together in the same house. There would, in those circumstances, normally be no question of rendering accounts and thus, in my opinion, the District Judge, in finding that Mangal Khan had acquired a title by adverse possession as against his sons, has relied on criteria which would be applicable to strangers but were quite inapposite in the circumstances of this case. I hold, therefore, that Mangal Khan !had not acquired a title by adverse possession.