SHEIKH GOHARADDI Vs. HASAIN KARIKAR

JUDGEMENT

(1.) This suit originally was for the possession of 8 annas share in plots Nos. 1 to 6 and for the whole of plot No. 7. The learned Subordinate Judge held that the plaintiff was not entitled to possession of plot No. 7, and the appeal now relates to 8 annas of plots Nos. 1 to 6.

(2.) These plots of land belonged to one Saber, the father of defendant No. 1. He made a heba of these plots in favour of his widow Sabani Bibi and a foster-son of the name of Kuran. The defence originally was that the heba was executed under the undue influence of Sabani Bibi at a time when the defendant was not present.

(3.) The learned Munsif held against that contention and after having dealt with the case made by the defendant upon that question he added that the defence was improved at the trial and in the arguments by introducing certain objections. One of these objections was that the gift was invalid on the principle of Musha. He held that the objection was not a purely legal objection but one in which facts had to be found. He appreciated that such a point required to be rejected, specially as no such issue was raised, but unfortunately he dealt with it. The Subordinate Judge held that the doctrine of Musha was not applicable to such lands, because the shares of each of the donees could be ascertained. The donees, as I have said, were the widow and the foster-child.