HABIB BAKHSH Vs. AMINA BIBI

JUDGEMENT

(1.) This appeal arises out of a suit for a share in the inheritance of Rahim Bakhsh, the father of the plaintiff. Rahim Bakhsh died on 24 January 1921 leaving a mother, Mt. Muhammadi, three widows, six sons and two daughters. According to Mahomedan Law the shares would he as follows: The mother, Mt. Muhammadi, would get 1/6 or 56 sihams; The three widows would got 1/8 between them or 14 sihamas each; the six sons would get 34 sihams each, and the two daughters 17 sihams each; total 336 sihams. In 1922 one of the widows, Mt. Latifan who had five sons and one daughter, brought a suit No. 24 of 1922, for partition of the share of herself and her children. The other heirs of Rahim Bakhsh were impleaded as defendants. The suit ended in a compromise whereby Latifan and her children obtained 7/16 of the property and the remaining 9/16 went to the other heirs.

(2.) The plaintiff, Mt. Amina, has now brought a suit for her share claiming 45 sihams out of 336. She claimed 17 sihams as her own share under Mahomedan Law and 14 sihams as the share of her mother, Mt. Zainab deceased on the allegation that Mt. Zainab had made an oral gift of her whole share in the plaintiff's favour. She also claimed 1-1/3 sihams as heir of Mt. Muhammadi deceased. She further claimed 12-2/3 sihams as her share of the 54 sihams relinquished by Mt. Latifan and her children. On this point we may as well explain at once that in the compromise, which ended the suit instituted by Mt. Latifan and her children, the plaintiffs in that suit got loss than they would be entitled to under Mahomedan Law. They got 147 sihams only instead of 201 sihams. There was thus an excess of 54 sihams divisible among the remaining heirs. In this way the plaintiff claimed the excess which appertained to her mother's share and to her own share. The principal defence was that the plaintiff had made a registered deed of gift of her share which she inherited from her father in favour of her brother, Habib Bakhsh, who is the principal defendant. This document was executed on 2 March, 1922 and purports to make a gift of the 17 sihams inherited from her father to her brother, on condition that her brother should pay her an allowance of Rs. 60 per mensem for her life.

(3.) It was also denied that Mt. Zainab had made a gift of her share in the plaintiff's favour. It was also pleaded that Mt. Muhammadi had made a gift on 18 April 1921 transferring her whole share of 56 sihams to Habib Bakhsh in lieu of a maintenance allowance of Rs. 60 per mensem for herself for life and subsequently for her two daughters. It was also pleaded that the plaintiff could not benefit from the excess share obtained by the defendants in Latifan's case because the plaintiff was not a party to the compromise. As regards the alleged deed of gift executed by the plaintiff in favour of her brother the plaintiff set up a clear plea of fraud. She said that she never executed, to her knowledge, any deed of gift in favour of her brother but that her brother obtained her thumb impression on certain pieces of blank paper and she did on one occasion affix her thumb impression to a document which she believed to be a mukhtarnama, so that her brother should be empowered to act on her behalf in Latifan's suit.