MAQBUL HUSAIN Vs. MTZAIN-UN-NISSA BIBI

JUDGEMENT

(1.) This is an appeal by the plaintiffs. Plaintiffs 1 and 2, Maqbul Husain and Iqbal Husain, are the grandsons of plaintiff 3, Mt. Waliya Bibi. The suit was for the possession of a house and a plot of land and for damages. The trial Court decreed the suit in favour of plaintiffs 1 and 2. On appeal by the defendants the lower Appellate Court has dismissed the suit.

(2.) The case of the plaintiffs was that plaintiff 3, Mt. Waliya Bibi, had inherited the property from her father and had subsequently made a gift of it in favour of her grandsons, plaintiffs 1 and 2 and that the defendants had interfered with the possession of the plaintiffs. A deed of gift bearing date 14 September 1933 was relied upon by the plaintiffs. The defence was that the northern portion of the property in question, namely the house, had belonged to Mir Gulzar Ali, the husband of Mt. Waliya Bibi, and not to the father of the lady, and that onMir Gulzar Ali's death the property had devolved on the defendants. As to the southern portion of the property in dispute, it was pleaded that it had belonged to one Dwarka Brahman and that the defendants had purchased it from him. On these assertions of fact, it was pleaded by the defendants that Mt. Waliya Bibi never had any right or title to any portion of the property in dispute and was not entitled to make any gift in favour of plaintiffs 1 and 2. The trial Court held in favour of the plaintiffs and, as already stated, passed a decree in favour of plaintiffs 1 and 2, holding that plaintiff 3 had validly gifted the property to her grandsons, the first two plaintiffs.

(3.) The lower Appellate Court has held against the gift on a point which does not seem to have been specifically raised by the defendants in the trial Court. Observing that it was "one of the cardinal principles of the Muslim law that a gift to be valid, must be accompanied by the delivery of possession," it went on to deduce from certain statements made in para. 8 of the plaint as to the facts giving rise to the cause of action for the suit and the dates on which such cause of action arose, that Mt. Waliya Bibi could not be in possession of the property on 14th September 1933, which was the date on which the deed of gift relied upon had been executed, and held that the gift was therefore invalid under the Mahomedan law and plaintiffs 1 and 2 had acquired no title to the property in question. It may here be pointed out that the lower Appellate Court failed to notice that in para. 6 of the plaint it was alleged that Mt. Waliya Bibi had originally made an oral gift in favour of her grandsons, plaintiffs 1 and 2 prior to 14 September 1933 and had put the donees in possession and that she had executed the deed of gift of 14th September 1933 only as a matter of precaution so that no dispute might arise in future. An argument was pressed upon the lower Appellate Court by the counsel appearing for the plaintiffs that even if the view of the Court that the gift made by Mt. Waliya Bibi was void ba correct, a decree may be granted in favour of Mt. Waliya Bibi who was plaintiff 3, but the Court did not accept this contention on the ground that Mt. Waliya Bibi had filed no appeal against the decree of the trial Court which was in favour of plaintiffs 1 and 2 alone. The Court declined to apply the provisions of Order 41, Rule 33, Civil P.C. In the view that we have taken of the case, it is not necessary to deal with this latter point.