MT KANIZAN Vs. MTLATIFAN

JUDGEMENT

(1.) This is an appeal by the plaintiff in an action claiming partition of properties given in the schedule to the plaint, the plaintiff's share in the circumstances set out in the plaint being eight annas in those properties. The plaintiff Mt. Kanizan based her title on two gifts and in these circumstances: One Nazaf Ali Shah had two daughters, the first Mt. Mahbuban and the second Mt. Latifan who is defendant 1 in this case. The plaintiff is the daughter of Mt. Mahbuban, and she claims that her mother's father (that is to say, her maternal grand father) on 11th July 1921 executed a deed of gift of all his properties to her mother Mt. Mahbuban and her mother's sister Mt. Latifan to the extent of-half and half; that on 6 April 1933 Mt. Mahbuban executed a deed of gift of her eight annas share in favour of the plaintiff; and that this deed of 6 April 1933 was preceded by an oral gift of six months before. It was in those circumstances that this action was brought claiming partition and possession of the property to the extent of eight annas share. Nazaf Ali Shah, the maternal grand father of the plaintiff is still alive and is one of the defendants in the action. He gave evidence and his case was supported by a number of witnesses that the deed of gift executed by him in 1921 in favour of his two daughters was a farzi transaction, that no possession was given to his daughters and that he himself retained possession of the property, the subject- matter of the gift.

(2.) It will be seen from the short statement of facts I have given that the plaintiff's claim to eight annas share of the property depends upon the establishment of both the gifts, viz. the gift by Nazaf Ali Shah, and that by Mt. Mahbuban to the plaintiff. I should have stated that the learned Judge has accepted the evidence of the defendants for coming to the conclusion that the transaction of 11 July 1921 was a farzi transaction and dismissed the plaintiff's suit.

(3.) I propose in the first instance to deal with the second gift by the mother Mahbuban to the plaintiff which as I have said was preceded by an oral gift six months before. The extent of the plaintiff's share depends upon the proof of this transaction. If the plaintiff succeeds in proving the first gift of 1921 in favour of her mother and the second of 1933 in favour of herself, she will be entitled to eight annas share in the property of Nazaf Ali Shah. But if she establishes the first transaction and fails as regards the second, it is clear that she would be entitled to only four annas share in the property; while if the decision of the learned Judge stands, having regard to the fact that Nazaf Ali Shah is still alive the action, as the learned Judge in the Court below has decided, is bound to and must necessarily fail. Now, as regards the second gift which I propose to deal with first, it seems to me that there is nothing to support the plaintiff's case. I do not propose to decide the question of law which was mooted during the course of the argument; but Mr. Sinha's argument in favour of the deed of gift by the mother to the plaintiff is based on the contention that the document of 6 April 1933 was not a transaction which affected the gift but was as I have already said and repeat preceded by an oral transaction six months before. In support of that contention evidence was given by plaintiff's witness 2 Sheikh Leaqat Kharadi who stated that Mahbuban made a verbal gift of the properties about six months before her death "in my presence and the plaintiff was given possession by her mother over those properties."