1. The facts of the suit out of which this appeal arises are these: A certain Nur Muhammad was maraud twice. By his first wife, now dead, he had two sons, Zahur-ud-din and Shakur-ud-din. The name of his other wife is Hurmat. By her he had three sons, Habibuddin, Shamsuddin, Azizuddin, and two daughters. On the 29th of May 1890 a t certain house was sold by Hasan to Zahuruddin for Rs. 99. On the 23rd of July 1904 Zahuruddin transferred this house by a registered sale-deed to his minor brother Shakuruddin for Rs. 300. This house is now occupied by Hurmat and her sons and daughters. Nur Muhammad has quarrelled with Hurmat and her children. Shakuruddin died some little, time ago, leaving as his heirs a widow of the name of Bigga or Langa and 3 minor son Shafiuddin. These two persons instituted the suit, out of which the present appeal arises, against Hurmat and. her sons for ejectment from this house. They joined Nur Muhammad as a co-defendant. Hurmat and her song setup as their case that the house had never belonged either to Zahuruddin or to Shakuruddin but-that it had been purchased by Nur Muhammad m the name of Zahuruddin, and subsequently he had transferred, the house from the name of Zahuruddin to the name; of Shakuruddin by the second, sale-deed, and that as a matter of fact the house was his.
2. The Munsif found that Nur Muhammad was the owner of the house and that Nur Muhammad had transferred the house by an oral gift to Hurmat and her children. He dismissed the suit. The learned District Judge in appeal found that Nur Muhammad was the owner of the house. He arrived, however, at no conclusion oft the second point. The plaintiffs appeal here. The principal ground which they take is that even if they are held to be benamidars, under the authority of the decisions in Nand Kishore Lal v. Ahmad Ata 18 A. 69 : A.W.N. (1895) 160 : 8 Ind. Dec. (N.S.) 751 and Yad Ram v. Umrao Singh 21 A. 380 : A.W.N. (1899) 130 : 9 Ind. Dec. (N.S.) 951 the principle of which was approved by their lordships of the Privy Council in the case of Gur Narayan v. Sheo Lal Singh 49 Ind. Cas. 1 : 46 C. 566 : 17 A.L.J. 66 : 36 M.L.J. 68 : 9 L.W. 335 : 23 C.W.N. 521 : 1 U.P.L.R. (P.C.) 1 : 12 Bur. L.T. 122 : 46 I.A. 1 (P.C.) they are entitled to sue. This plea must prevail. The decisions in question are ample authority for the conclusion. The house was transferred first to Zahuruddin, who transferred it by a valid instrument to Shakuruddin, and the plaintiffs are his heirs. I accept the finding that Nur Muhammad is the actual owner. It obviously would be of little advantage to the defendants to leave the matter as the District Judge has left it He has not decided anything in favour of their title. He has only decided that Nur Muhammad is the owner of the house. It was, therefore, open to Nur Muhammad to institute a suit for ejectment, at any time. The learned District Judge has arrived at no finding as to title. The Munsif found that Nur Muhammad had transferred the house by a valid oral gift. I set aside the order of the District Judge, but as he disposed of the appeal on a preliminary point, I send the appeal back to Mm for decision of the question of the defendants' title. It will be restored under its original number and decided according to law. Costs here and hitherto will follow the result. They will include in this Court fees on the higher scale.