1. The question involved in this First Appeal is really speaking a very short one. The appellants before me are the original plaintiffs, who had filed a suit for partition and recovery of their share in the properties left by one Fate Sherkhan, husband of plaintiff No. 1 and father of the remaining plaintiffs. Practically the entire suit of the plaintiffs has been decreed. Only the plaintiffs' claim for share in house No. 1-15-101 situate at Deodi Bazar Chawk. Aurangabad, has been negatived. For the sake of convenience the said house bearing No. 1-15-101 will be referred to hereinafter as the 'suit house'. The present appeal by the plaintiffs relates to the claim pertaining to the suit house.
2. It will be useful setting out the relationship of the parties at this stage. Fate Sherkhan had 3 wives : (1) Fatimabi, who was defendant No. 1 in the lower Court, (2) Kadeeranbi, who was plaintiff No. 1 in the lower Court, and (3) Bholibi, who was dead before the suit. Daughter of Bholibi is Rasheedabi, who was defendant No. 8 in the lower Court, Kadeeranbi, plaintiff No, 1, has five children from said Fate Sherkhan. They were plaintiffs Nos. 2 to 6 in the lower Court. Fatimabi, defendant No. 1, has six children from Kate Sherkhan. They were defendants Nos. 2 to 7 in the lower Court.
3. The suit house originally belonged to one Muneerkhan. It came to be purchased by Mahboobkhan in the year 1949, There is no dispute that out of the price of Rs. 5,000/- a sum of Rs. 4,000/-was paid not by Mahboobkhan but by the said Fate Sherkhan to the vendor in the presence of the Sub-Registrar. An endorsement to that effect was made by the Registrar on the sale deed itself. In 1950 plaintiff No, 1 married said Fate Sherkhan. There is no dispute that a sale deed came to be executed by selfsame Mahboobkhan on 28-8-1963 in respect of the suit house, and the purchaser shown in the said sale deed was Mahboobkhan, who is none other than defendant No. 2 in these proceedings. Fate Sherkhan died on 16-6-1964. On 38-9-1966 the present suit was filed by the plaintiffs for their share in the entire property left by said Fate Sherkhan Including the suit house. The contention was: firstly, that the sale deed executed by Muneerkhan ostensibly in favour of Mahboobkhan was a benami transaction, that Mahboobkhan was only a benamidar for Fate Sherkhan and that the sale was in fact taken by Fate Sherkhan benami in the name of Mahboobkhan on account of certain superstitious belief. Secondly, that the sate by Mahboobkhan in the name of Mahboobkhan, defendant No. 2, was also a benami transaction and that the real transferee was none other than Fate Sherkhan himself. The contention, therefore, was that, in the ultimate analysis, defendant No. 2 was a benamidar for Fate Sherkhan and that, hence, the plaintiffs were entitled to a share in the suit house.
4. This claim of the plaintiffs in respect of the suit house was resisted mainly by defendant No. 2. It was his contention that the sale transaction of the year 1949 was not a benami transaction. He contended that Mahboobkhan was the real purchaser under the said transaction and that the plea about benami character of the transaction was incorrect. He further contended that by the sale deed dated 29-8-1963 the suit house was purchased by defendant No. 2 himself from the said Mahboobkhan. He denied that the transaction of the year 1963 was in any way a benami transaction. In the alternative he contended that in case it was held that both the transactions were of a benami nature, the suit house was gifted by Fate Sherbhan to himself 'and that, hence, the plaintiff were not entitled to any share in the same.
5. It was on these pleadings that issues were framed. So far as the issues pertaining to the other properties are concerned, they are of no relevance so far as this appeal is concerned, because the plaintiffs' contention as regards the other properties have been upheld by the trial Court and the plaintiffs' suit In that behalf has been decreed. There is no appeal filed by any of the defendants as against that part of the decree nor is any cross-objection filed in connection with that part of the decree,
6. So far as the suit house is concerned, the relevant issue framed by the trial Court is issue No. 4. The said issue runs as follows:--
'Do the defendants prove that the house No. 1-15-101 was not the property of the deceased Fate Sherkhan and is the self earned property of defendant No. 2?'
Prima facie it appears that the learned Judge has cast the burden of proof that the transaction was not a benami transaction upon defendant No. 2 and if the learned Judge had pursued the said burden, probably the approach would have been rendered illegal. In a case where a plaintiff alleges that the defendant is a benamidar, though the sale deed stands in his favour, the burden of proving that the transaction was of a benami character, is always upon the person, who sets up the benami character. In the instant case it was the contention of the plaintiffs that the transactions of the year 1963 and 1949 were of a benami character. Hence the burden would have been on the plaintiffs in the instant case to prove that the transaction was a benami transaction. However, this aspect of the matter is entirely academic in its reality, because while appreciating the evidence the learned Judge has clearly proceeded upon the assumption that the burden was upon the plaintiffs and not upon the defendants. As 1 go through the judgment of the learned Judge, it is clear that the learned Judge has expected the plaintiffs to prove that the transaction was of a benami character.
7. I must, however, say that the learned Judge's appreciation of the evidence is far from satisfactory so far as issue No. 4 is concerned. In the ultimate analysis the learned Judge has accepted the plaintiffs' plea that the transaction of the year 1949 and the sale deed dated 29-8-1963 were both benami transactions and he has held that the real owner of the suit house was none other than Fate Sherkhan, both the said two sale deeds, first of the year 1949 and the second of the year 1963 notwithstanding. He has recorded an unequivocal finding that so far as the consideration regarding the sale deed of the year 1949 was concerned, it flowed from Fate Sherkhan and that Mahboobkhan had no share in the same whatsoever. He has also found that the possession of the suit house was always with Fate Sherkhan. He has also noted the fact that Mahboobkhan was not present at the Sub-Registrar's office at the time of registration and further that a substantial portion of the sale price, that is to say, Rs. 4,000/- out of the total price of Rs. 5,000/-, was paid by Fate Sherkhan to the vendor before the Sub-Registrar at the time of the registration of the sale deed. Having regard to all these facts, the learned Judge has come to the conclusion that the transaction of the year 1949 must be held to be a benami transaction and that the real purchaser must have been none other than Fate Sherkhan himself. H6wever, while appreciating the evidence in this behalf the learned Judge has unnecessarily disbelieved plaintiff No. 1 when she stated the reason why the sale deed of the year 1949 was taken by Fate Sherkhan in the name of a benamidar. The learned Judge has held that there has been a discrepancy in this connection in the evidence of plaintiff No. 1 and her witness Sayed Nawaz, P W. 2. This is what the learned Judge has observed in this connection :
'At the outset it has to be stated without any reservation that the oral evidence produced by both the parties contains material and important discrepancies. P. W. 1 is the plaintiff No. 1 herself. She states that her husband Fate Sherkhan gave the consideration himself but got the sale deed of the house No. 1-15-101 done in the name of Mahboobkhan because some astrologer had told him that it would not be beneficial or auspicious if the house was purchased in his own name, and hence she says that Fate Sherkhan got the sale deed registered in the name of Mahboobkhan though Fate Sherkhan had paid the amount of consideration himself to the vendor Munirkhan. But this statement is contradicted by P. W. 2 himself who is also a near relative of the plaintiffs. This P.W. 2 Sayed Nawaz says that a religious preceptor by name Hamid Miya of Daulatabad had told Fate Sherkhan not to purchase the house in his own name but to purchase it in the name of the other and so he says that the house was purchased in the name of Mahboobkhan. Thus the main cause for purchasing the suit house in the name of Mahboobkhan is not agreed upon by the P. W. 1 and P. W. 2 amongst themselves. If it was a fact, that such a discrepancy ought not to have occurred at all. The P. W. 2 at first hesitated to give the name of preceptor hut later he gathered courage and gave the name. The preceptor can never be turned as astrologer which means that the P. W. 1 never had any idea about a preceptor telling the same to Fate Sherkhan.'
I have carefully perused the relevant portion of the evidence and I find no justification for any such criticism being levelled against the evidence of the plaintiffs in this behalf. The learned Judge can be said to have indulged in the exercise of hair-splitting when he made a distinction between astrologer and preceptor. Preceptor often times poses himself as an astrologer and astrologers are considered by many religious people of having been possessed of powers of preceptor. The difference in the terminology should not have been a cause for the learned Judge to disbelieve the witnesses in such a manner. The learned Judge has relied upon the evidence of P.W. 3 Sahebkhan, who is the son of Mahboobkhan and son-in-law of plaintiff No. 1, that is to say of the husband of plaintiff No. 1. It is difficult to say that the said witness P. W. 3 has not denied that Mahboobkhan was only a mere benamidar. It is, however, difficult to find any justification for finding fault with the oral evidence of the plaintiff as a whole merely because the said witness P. W. 3 chose to deny the benami character of the transaction. The point is that even according to the learned Judge, the transaction was of a benami character. This conclusion is arrived at by the learned Judge having regard to the fact that the entire consideration flowed from Fate Sherkhan only. The learned Judge has noticed the fact that substantial portion of the consideration, Rs. 4,000/- out of Rs. 5,000/-, was paid by Fate Sherkhan to the vendor at the time of the registration and this was done in the presence of the Sub-Registrar himself, which fact is borne out by the endorsement made by the Sub-Registrar on the sale deeds. The learned Judge has also noticed the fact that Fate Sherkhan was in possession of the suit house till his death. On this account the learned Judge has even upheld the contention of the plaintiffs that the transaction of the year 1949 was nothing but a benami transaction and that the real owner of the suit house was none other than Fate Sherkhan himself. To my mind the learned Judge has arrived at a correct conclusion in this behalf although by somewhat faulty reasoning so far as the oral evidence of the plaintiffs' is concerned.
8. It may be mentioned here that even the second sale deed of 29-8-1963 has been found by the learned Judge to be a benami sale deed. To my mind, the learned Judge's said conclusion is equally correct. It is to be noted in this connection that defendant No. 2 has mentioned his age at the time of the evidence, in the year 1970, to be 21 years. This means that on 29-8-1963 he was only 14 years of age. It is, therefore, unlikely that he would be having the wherewithal to purchase the suit house, Defendant No. 2 has advanced a theory that he used to get Rs. 200/- from his father for his own sake and for the sake of his mother as a kind of remuneration for sitting in the shop. It is an admitted fact that he was in possession of the books of accounts of the shop. In paragraph 11 of his judgment, the learned Judge has recorded a clear finding that those books have been withheld by defendant No. 2. In fact the learned Judge has recorded a finding that no evidence whatsoever has been led by defendant No. 2 to prove that he used to get any remuneration from his father till the time of his death. Moreover, defendant No. 2 has admitted in so many words that the suit house was worth Rupees 30,000/- to 35,000/- at the time when he gave the evidence. It is, therefore, obvious that in the year 1963 also it must have been of much higher value than Rs. 5,000/-. At least it could not be less than Rs. 5,000/- that year. It was purchased for a sum of Rs. 5,000/- in the year 1949. In this view of things it is impossible to find any justification for anybody to sell the house for a paltry sum of Rs. 1,500/- to anybody else. The evident fact, therefore, is that Fate Sherkhan had taken a formal sale deed in respect of the property benami in the name of Mahboobkhan in the year 1949. He wanted to have the same retransferred to himself but for some superstitious reasons he did not want the sale-deed to be taken in his own name, and that is the reason why probably he took it in the name of someone from his own family other than himself. It may be stated here that this position has been accepted by the learned Judge and no fault can be found with the conclusion arrived at by the learned Judge in this behalf
9. Mr. Hussein, learned Advocate for the respondents, who supported the decree of the trial Court relating to this house assailed this part of the judgment by contending that there was a valid, lawful and genuine sale-deed taken by defendant No. 2 from Mahboobkhan. In support of this contention he argued that the plaintiffs had led no evidence for the purpose of proving the benami character of the sale deed, Ex. 123. He contended that assuming that there was some reason for Fate Sherkhan to take a document benami in the name of Mahboobkhan on account of superstitious reasons, no such reason was advanced by the plaintiffs so far as the sale deed, Ex. 123, was concerned. He, therefore, contended that there was no basis for holding that the transaction of the second sale deed was a benami transaction. He referred to and strongly relied upon the statement of defendant No. 2 in his cross-examination to the effect that at the time of his father's death he was 19. years of age. Mr. Hussain also relied upon the statement of defendant No. 2 in his oral evidence to the effect that his father was paying him Rs. 200/- per month for himself and his mother, when he (defendant No. 2) started sitting in the shop. But what Mr. Hussein has lost sight of is that defendant No. 2 has miserably failed to prove that he had the wherewithal to purchase the suit house in the year 1963. Beyond his bare word, defendant No. 2 has led no evidence to prove that he was getting those Rs. 200/- per month from his father. As already stated above, the learned Judge has observed that defendant No. 2 could have produced books of accounts which could have proved that he was getting some income from the shop and that he had withheld the books of accounts. Mr. Hussein had no answer to this part of the reasoning of the learned Judge. More over Mr. Hussein had no explanation to defendant No. 2's admission at the outset that on the date when he was giving evidence, in the year 1970, he was 21 years of ago. This means that in the year 1963 when the sale deed was executed he was of 14 years of age. It can be said at least prima facie that this is consistent with his statement that at the time of his father's death he was in 7th standard. The question then is as to whether he would be able to purchase the suit house with his own moneys at that time. The reply to this question is sought to be given by Mr. Hussein by relying upon the statement of defendant No. 2 in his cross-examination where he has stated that in the year 1964 he was 19 years of age. When it was pointed out to him that on his own showing ho was in 7th standard at the time of his father's death in 1964 which meant that in the year 1963 he was in the 6th standard (which is compatible with his being 14 years of age at that time), Mr. Hussein stated that defendant No. 2 might have gone on failing in the examination. Mr, Hussein did not think it necessary to base these statements on any evidence at all.
10. Further Mr. Hussein strongly relied upon the statement made in the sale deed which showed that defendant No. 2 was 21 years at the time of the sale deed. When asked as to why the statement in the sale deed not made by himself should be preferred over a statement made by himself on oath before the Court stating his age to be 19 years on the date of the evidence, the only device hit upon by Mr. Hussein for inflating the age of defendant No. 2 was to rely upon the abovementioned bland statement made by defendant No. 2 in his cross-examination. He no doubt went on harping upon his fond proposition that that was a 'positive' statement (using the word 'positive' with an evident thick black (imaginary) underline). To my mind such a bland assertion, howsoever emphatic, serves no judicial purpose. I, therefore, made it clear to Mr Hussein that I had not the slightest inclination to accept any of his above contentions.
11. One of the reasons for his is --many questions remain unanswered even if his contentions are taken at their face value -- and are swallowed hook, line and sinker!
12. Firstly, and this is noteworthy, there was not even a pretence on the part of Mr. Hussein to argue that the first sale deed of the year 1949 was not a benami transaction. Not even an attempt was made by him to deny that.
(a) Fate Sherkhan was the person who had paid the entire consideration of Rupees 5,000/-.
(b) He was in possession of the suit house all the time.
(c) He was the real owner and Mahboobkhan was only a benamidar, Questions then arise as to:--
(a) how is it that defendant No. 2 purchased the suit house from Mahbooh-khan?
(b) why such pittance of consideration was paid when on his own showing the house was worth Rs. 30,000/- to 35,000/-?
(c) if the real vendor of defendant No. 2 was Fate Sherkhan and if Fata Sherkhan wanted to sell the house, why should he sell it for such a paltry sum?
(d) why did possession continue with Fate Sherkhan in spite of the second sale deed?
Not even a pretence was made by Mr. Hussein to give any answer to any of these questions, though posed directly and repeatedly.
13. Once it is accepted that defendant No. 2 could not have in his possession the said amount of Rs. 1,500/- with which he could purchase the suit house from Mahboobkhan and once it is found that Fate Sherkhan continued with his possession of the suit house even after the sale deed, (which fact I find no hesitation in accepting) it would follow that the document, Ex. 123, could not result in conferring any title upon defendant No. 2 and it would follow that defendant No. 2 was just another benamidar found by Fate Sherkhan in place of the first benamidar Mahboobkhan.
14. It is unnecessary to examine separately Mr. Hussein's contention regarding his case that no evidence was led by the plaintiffs for establishing the benami character of sale deed, Ex. 123. The above circumstances are themselves evidence in abundant measure of the fact that defendant No. 2 was a mere benamidar. Once the fact that from the very nature of things the ostensible purchaser could not have had moneys or capacity to purchase any property is established, this fact coupled with the fact that Fate Sherkhan continued to remain in possession of the suit house even after the said deed, must give rise to the inference that the transaction embodied in the sale deed, Ex. 123, was a benami transaction. I find that the conclusion of the learned trial Judge in this behalf to be quite correct.
15. Where the learned Judge went away in his judgment, however, is his strange conclusion that Fate Sherkhan had made a gift of the suit house to defendant No. 2. No doubt defendant No. 2 had made an alternative case to this effect in his written statement; but there is not an iota of evidence led by him to bolster his case of gift. No word is said by him regarding any gift having been made by his father to himself. There is neither any oral evidence nor ally documentary evidence led by him to justify such plea.
16. A gift can be made by a Muslim either by document or if it is to be made orally by actual delivery of property. In the context of the facts of the case, it is not even suggested that Fate Sherkhan had executed a gift-deed in favour of defendant No. 2. What we find from evidence is that a sale deed was executed by Mahboobkhan in favour of defendant No. 2 and not any gift-deed by Fate Sherkhan in favour of defendant No. 2. A gift by document, therefore, is out of question in the instant case. So far as the gift by delivery of possession is concerned, it is not pleaded by defendant No. 2 nor is it proved by any evidence whatsoever by him. He has not stated that the possession of the suit house was made over by Fate Sherkhan to himself with the intention of making gift of the same to him. In this view of things at least at first blush it does appear that it is impossible to find any justification for the learned Judge's conclusion that the suit house was gifted by Fate Sherkhan to his son, defendant No. 2.
17. Mr. Hussein, however, insisted that the finding of the trial Court regarding gift by Fate Sherkhan to his son, defendant No. 2 was a correct finding. It was his contention that this was a gift by document as required by Section 123 of the Evidence Act. When asked as to how any one of the requirements of the said Section 123 was complied with, he had no answer to the question intelligible to the Court. However, he relied upon the statement of law contained in Principles of Mahomedan Law written by Sir Dinshaw Mulla with particular reference to paragraphs 147 to 150 and 155 thereto. He also contended further that it this could not be considered a gift-deed by document, it should be considered to be a oral gift.
18. I do not find any substance in any of these contentions. For a valid gift under the Mahomedan Law it is absolutely necessary that there should be : (a) a declaration, (b) acceptance and (c) delivery of possession -- in respect of the property in question. Defendant No. 2 has no doubt made an averment in the written statement that the suit house was gifted to him by his father, but not a word is murmured or whispered by him in his evidence as regards the gift. It, therefore, follows that none of the ingredients for a valid gift are made out by him in his evidence. In reply to this position Mr. Hussein contends that the document, Ex. 123, itself is sufficient for proving all these ingredients of a valid gift. It is impossible to accept this contention in the context of the state of evidence on record.
19. Mr. Hussein further contended that defendant No. 2 had paid the taxes for the period during the year 1965-66 to 1969 and for that purpose he relied upon tax receipts, Exs. 124 to 127, for the tax paid by him for six years. It is impossible to see what these tax receipts have got to do with the gift. The fact that at the time of the suit defendant No. 2 had arrogated to himself the right of ownership of the property is not in dispute at all. The question is as to whether the suit house was gifted to him. There is nothing on the record to show as to whether there was the intention of his father to make any such gift. There is nothing on the record to show that defendant No. 2 has accepted that house as given by his father as a gift at the time when the gift was made. There is nothing on the record to show that the father had the intention of delivering possession of the suit house to his son, defendant No. 2. It is not the case of defendant No. 2 that he paid the taxes for the house during the life-lime of his father. In fact it is not even suggested that defendant No. 2 asserted his right of ownership in any manner during the lifetime of his father.
20. It cannot be mentioned that Mr. Hussein relied upon paragraph 155 of Mulla's Principles of Mahomedan Law, where it is stated as follows :
'No transfer of possession is required in the case of gift by a father of his minor child or by a guardian to his ward. All that is necessary is to establish a bona fide intention to give.'
This contention is somewhat amusing: It is Mr. Hussein's own contention that defendant No. 2 was of 21 years of age on the date of the alleged gift. It is, therefore, difficult to reconcile his present contention with his previous argument. But even proceeding upon the basis that defendant No. 2 was a minor at the time of the document, Ex. 123, which, in view of my above finding regarding his age, I must say, it is impossible to find any basis for the contention that Fate Sherkhan had a bona fide intention to donate the suit house to defendant No. 2. Mr. Hussein has not disputed before me at all that so far as the first transaction of the year 1949 was concerned, it was a benami transaction. Now, if in the year 1949 Fate Sherkhan wanted to purchase the property in the name of somebody outside the family, there is nothing unlikely in his wishing that in his old age the property should be with somebody in his own family. Nothing is brought on record to show that Fate Sherkhan intended to exclude any of his o her children and had intended to make defendant No. 2 alone the owner of the suit house.
21. But apart from the abovementioned legal position what needs to be borne in mind is that though in the case of a gift by father to his minor son the requirement of actual delivery of possession may not be insisted upon by law, the other requirements of a valid gift cannot be dispensed with. The first and foremost of the requirements is the declaration of the gift. A corollary of this principle of law is that there can be no gift by implication. It has got to be express and unequivocal. Statement of law in this behalf is to be found in para 148 of Mulla's Mahomedan Law which is as follows:--
'It is essential to the validity of a gift that the donor should divest himself completely of all ownership and dominion over the subject of the gift.'
Moreover the following statement of law by Macnaghlen is cited with approval by Sir Dinshaw Mulla :--
'A gift cannot be implied. It must be express and unequivocal and the intention of the donor must be demonstrated by his entire relinquishment of the thing given and the gift is null and void when he continues to exercise any act of ownership over it.'
Nothing has been brought to my notice to show this prerequisite of a valid gift by a Muslim is dispensed with in the case of a gift by a Muslim father to his minor son. But what Mr. Hussein, in effect and in substance, wants this Court to do imply a gift by Fate Sherkhan to his minor son defendant No. 2, from the fact Fate Sherkhan got the sale deed, Ex. 123, executed by Mahboobkhan in favour of defendant No. 2. In other words he wants the Court to infer gift by implication. To my mind this argument militates against well settled principles of Mahomedan Law relating to gift.
22. A word regarding the ingredient of delivery of possession which ingredient is prima facie dispensed with in case of gift by father to his minor son would not be out of place. Para 155 of Sir Dinshaw Mulla's Mahomedan Law which contains the statement of law in this behalf is already set out above. The full implication of the statement of law cannot be fully understood unless the rationale -- the raison de'tre -- for the apparent deviation from the general rule is appreciated. And once this rationale is appreciated, it would be readily perceived that the statement of law contained in para 155 of Mulla's said work is, in reality, not an exception to the general law stated in para 148 extracted above. The general rule is that a donor must divest himself of all the control of the property which is the subject-matter of the gift. Delivery of possession has, therefore, got to be a concomitant of the gift. But when a father gifts property to his child, the position is peculiar. While t is true that law does not find any-thing wrong for the father to gift his property to his child, the difficulty arises from a twofold position. Firstly, a minor may not be physically able to be in possession of the property except through his guardian and, secondly the father is himself the guardian of the property of his minor child. Delivery of possession ay a Mahomedan father to his minor child is, for all practical purposes, delivery by right hand to the left hand. This is evidently the reason why the strict requirement of delivery of possession is not strictly insisted upon in the case of a bona fide gift by the father to his minor child. In a sense the requirement continues, but it is fulfilled in a somewhat different manner. Till the date of the gift, the father is in possession of the relevant property on his own behalf, from the date of the gift he is in possession of the same, but only on behalf of the minor. (See Ameeroonnisa v. Abadoonnisa (1875) 15 Eng LR 67 : 2 Ind App 87 (PC) cited by Sir Dinshaw Mulla in para 155 of his work.
23. All this means that the basic requirement of a valid gift has got to be present even in the case of a father's gift to his minor child. It has got to be by express declaration of intention, it cannot be deemed to have been made by any implication.
24. In this view of the legal position, Mr. Hussein's attempt to prove the gift by implication must fail.
25. Mr. Hussein also tried to rely upon the statement of law extracted in the issue of Supreme Court Notes, dated 1st February, 1980 from the judgment of the Supreme Court in the case of Bhim Singh v. Kan Singh, Civil Appeals 626 and 629 of 1971 decided by the Supreme Court on 21-12-1979 (reported in : 2SCR628 ). That decision was under the Transfer of Property Act. The full facts of the case are not before me. Mr. Hussein wanted to rely upon certain stray sentences in the report. It is impossible to find any application of that judgment to the facts of the present case. That judgment appears to follow the judgment of the Privy Council in the case of one Mohammad Sadiq Ali Khan . Mr. Hussein has not taken pains to find out or study that case and to invite my attention to the ratio of that case. I find it impossible to get any assistance for deciding the question before me by reference to the statement of law extracted in the said abridged and summarised report. Mr. Hussein's contention in this behalf must, therefore, be rejected.
26. In this view of things, this appeal has got to be allowed and it has got to be held that the plaintiffs are entitled to a share in the suit house in the following proportion.
Plaintiff No. 1, 1/16th share.
Plaintiff No. 2, 7/152th share.
Plaintiffs Nos. 3 to 6, 7/76th share.
The trial Court shall proceed to pass appropriate orders for the purpose of effecting the partition of the suit house on the basis mentioned above.
27. Defendant No. 2 shall pay the costs of this appeal to the plaintiffs. There shall be no order as to costs so far as the remaining defendants are concerned.
28. Coming to the cross-objections filed by defendant No. 2 it is difficult, to find any merit in the cross-objections. The learned Judge has held that plaintiff No. 1 would be entitled to 1/16th share in the remaining portion of the suit properties which were valued at Rupees 32,150/-. While passing the final order, however, a typographical error crept in para 2 of the order. It was stated therein that plaintiff No 1 Kadeeranbi was entitled to 1/8th share in the suit property. However, while calculating the amount of her share it has been correctly calculated at the rate of 1/16th share and the actual amount is correctly mentioned to be Rs. 2,000.37 P. The cross-objection, therefore, in reality arises out of misplaced grievance.
29. Next portion of the cross-objection relates to the order of the costs passed by the trial Court. The trial Court had noted that the defendants had taken an extremely unreasonable stand in the lower Court. In paragraph 11 of the judgment the learned Judge has observed that the books of accounts were withheld by the defendants with the result that the plaintiffs might have suffered in the matter of ultimate calculation of the amount receivable by them. Having regard to all these facts the learned Judge has directed defendants Nos. 1 to 8 to pay the costs of the plaintiffs. It is well known that the costs are in the discretion of the Court and I find really no reason why I should interfere with the discretion exercised by the trial Court in this behalf. Moreover. Mr. Agrawal appearing for the appellants has invited my attention to the fact that no court-fees have been paid by the contesting defendants in connection with this grievance regarding the costs. It appears to me that this court-fee is sought to be saved by these respondents by resorting to an ingenious device of filing an appeal in connection with a typographical error and by showing that the relief regarding costs was by way of an incidental relief. If we see that the grievance regarding share of plaintiff No. 1 is wholly imaginary grievance, we cannot fail to find that the substantive grievance of defendants Nos. 1 to 8 is one relating to the order of costs and if that is so, it was incumbent upon these respondents to pay the court-fees on this claim pertaining to the costs ordered by the trial Court. Respondents' cross-objections in this behalf are liable to be dismissed on this ground as well.
30. There is a third plea taken in the cross-objection that the suit was filed by the plaintiffs in forma pauperis. While directing recovery of court-fee the trial Court directed that the same should be recovered from defendants Nos. 1 to 8 and if they failed to pay the same, from the plaintiffs in the first instance, who should be entitled to recover from defendants Nos. 1 to 8. This part of the decree is also challenged by respondents Nos. 1 to 8. It is difficult to see what justification could be there for any such challenge. Mr. Hussein did not even attempt to support any such plea in the cross-objections.
31. In this view of things, the cross-objections are dismissed. The respondents shall pay the costs of these cross-objections to the appellants.
32. Appeal allowed.