GULAM JAFAR Vs. RAMDHAN

JUDGEMENT

(1.) THIS decision will dispose of the present appeal as also cross-objections preferred and first appeal No. 39-B of 1926 filed on behalf of Defendant 8. These appeals arise out of a suit instituted by the appellants in first appeal No. 48-B of 1926 under the following circumstances. The story of the original plaintiffs, who were brother and sister, was that the transaction by means of rajinama and kabuliyat dated 4th February 1901, whereby the field in suit was acquired in the name of their father Gulam Ahmed, was really the acquisition of their grandmother Mt. Jabandi; that she died in '1906 leaving behind three sons Gulam Ahmed, Gulam Abbas and Gulam Kasim, who inherited one-third each. That the two uncles Gulam Abbas and Gulam Kasim relinquished their respective shares orally and by writing respectively in July 1912 in favour of plaintiff Gulam Jafar. Ex-bit P-2 dated 9th July 1912 is the deed of relinquishment executed by Gulam Kasim. Plaintiffs thus claimed their father's one-third share by inheritance and their uncles' two-thirds by virtue of the aforesaid relinguishment. The plaintiff s' mother Mt. Rahmat Bi had before her death sold away the land in dispute to one Bashiruddin in May 1913. The plaintiffs question the binding character of the sale on the ground of want of benefit to them as minors and also on the ground that their mother was under Mahomedan Law disqualified from selling their property as she, was not their legal guardian.

(2.) DEFENDANTS 1 and 2 are transferees from Bashiruddin and hence impleaded as parties. The claim was originally one for possession of land and for recovery of Rs. 15,000 as mesne profits. The trial Court decreed the claim for joint possession to the extent of five-eighth share subject to payment of Rs. 486-2-0 to defendant 1 and dismissed the rest of the claim. After the hearing of this suit was concluded, original plaintiff 2 Mt. Aminabi died and the judgment was delivered nunc pro tunc on 31st March 1926. Against the decision defendants 1 and 2 preferred first appeal No. 39-B of 1926 on 13th July 1926 and impleaded Gulam Jafar and Aminabi (though she was dead) as the respondents. The original plaintiff and the husband of Aminabi as her legal representative instituted their first appeal No. 48-B of 1926 on 24th July 1926.

(3.) ACCORDING to the defence Gulam Ahmed was the real owner of the property in suit. He was not a benamidar for his mother Mt. Jebanbi as alleged by the plaintiffs. The first Court framed an issue on the point and found it in plaintiffs' favour. The correctness of this finding is challenged by the defendants, but I am not prepared to differ from the lower Court on this point especially as the said finding is fully supported by a recital in Bashiruddin's own sale-deed that Gulam Abbas and Gulam Kasim owned a one-third share each in the land in suit. This admission of the rights of Gulam Abbas and Gulam Kasim is a very strong piece of evidence consistent with the theory of the plaintiffs' father being the benamidar for his mother Mt. Jebanbi. There is also a recital in the said sale-deed (Ex. D-15) that the two uncles had relinquished their shares in favour of their nephew, Gulam Jafar, and that Gulam Jafar was, therefore, the sole owner of the property conveyed. The present defendants being successors-in-interest of Bashiruddin are bound by the recitals and it would be for them to disprove their correctness. The evidence on record is hardly -sufficient to disprove the recitals. I, therefore, confirm the first Court's decision that Gulam Ahmed was a benamidar for his mother Mt. Jebanbi.