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RaichuddIn and ors. Vs. Mt. Waiz Bibi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1928Cal49
AppellantRaichuddIn and ors.
RespondentMt. Waiz Bibi and ors.
Cases ReferredIbrahim Goolani Ariff v. Saiboi
Excerpt:
- .....should be for exclusive possession of the lands of schedule 2 of the plaint; and in the other lands the decree made by the first court to the extent of the plaintiff's share for ejmali possession with the defendants was to stand. neither of the lower courts determined the question of the plaintiff's share in 12 1/2 gundas land in which she was to get ejmali possession with the other defendants. defendants 1 (ka), 1 (kha), 1 (ga) and 1 (gha) have appealed to this court.3. the appellants have raised three points : first of all, that the gift of an undivided share is bad as it offends against the mahomedan doctrine of mushaa; secondly, that it is neither alleged nor proved that the gift was accompanied by delivery of possession; and lastly, that the decree of the lower appellate court.....
Judgment:

Cuming, J.

1 This appeal arises out of a suit for a declaration of the plaintiff's raiyati title and for recovery of possession of the lands described in the schedules to the plaint. The case of the plaintiff was that the lands had been gifted to her by her mother Hadya Bibi by means of a hebanama. The case of the defendant was a denial of the plaintiff's title.

2. The first Court decreed the plaintiff's suit in a modified form. The plaintiff's title in kayami mukarrari right to plot (ka) measuring 12 1/2 gundas and to the disputed land described in Schedule 2 was declared and she was to get ejmali possession of these lands with the defendants. Defendants 1 (ka), 1 (kha) and 1 (gha) appealed to the District Court and there was also an appeal by the plaintiff. The District Court ordered the decree of the first Court to be modified to this extent: that the decree should be for exclusive possession of the lands of Schedule 2 of the plaint; and in the other lands the decree made by the first Court to the extent of the plaintiff's share for ejmali possession with the defendants was to stand. Neither of the lower Courts determined the question of the plaintiff's share in 12 1/2 gundas land in which she was to get ejmali possession with the other defendants. Defendants 1 (ka), 1 (kha), 1 (ga) and 1 (gha) have appealed to this Court.

3. The appellants have raised three points : first of all, that the gift of an undivided share is bad as it offends against the Mahomedan doctrine of mushaa; secondly, that it is neither alleged nor proved that the gift was accompanied by delivery of possession; and lastly, that the decree of the lower appellate Court is in vague terms and that the lower appellate Court should have determined the question of share.

4. With regard to the first point : the respondent contends that the question of mushaa is a mixed question of law and fact and it cannot be raised for the first time in second appeal. He draws our attention to the case of Ibrahim Goolani Ariff v. Saiboi [1908] 35 Cal. 1, a decision of the Privy Council in which it has been pointed out that the doctrine of mushaa is entirely unadapted to a progressive state of society and that it should be confined within the strictest rules. The respondent, I think, is quite correct in her contention.. The question as to whether; the gift was bad as it offended against the doctrine of mushaa is a mixed nuestion of law and fact. It is possible in certain circumstances, for instance where the gift is made to a co-heir, it does not offend against the doctrine of mushaa. That being so, it is not open to the appellants to raise what is clearly a mixed question of law and fact for the first time in second appeal.

5. The next point argued by the learned vakil for the appellants is that it is neither alleged nor proved that the gift was accompanied by delivery of possession. On this point there is a definite finding of the first Court that the necessary formalities had been complied with. That Court described those formalities us being a declaration of the gift by the donor and acceptance of the gift by the donee and delivery of such possession as the subject of gift is susceptible. This finding has not been set aside by the lower appellate Court. Both these points are, therefore, decided against the appellants.

6. There remains now the last remaining point : that the lower appellate Court should have determined the share of the plaintiff. The respondent is equally of opinion that the lower appellate Court should have determined the share of the plaintiff. The case will, therefore, be remanded to the lower appellate Court and the lower appellate Court will pass its decree after it has determined the share of the plaintiff in the 12 1/2 gundas plot.

7. The plaintiff-respondent is entitled to her costs in this Court.

Cammiade, J.

8. I agree.


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