1. This appeal arises out of a title suit in which the plaintiffs claimed khas possession of the lands of two schedules on declaration of their title thereto. The two plots of land in dispute are valued in the plaint at Rs. 20. The Munsif dismissed the suit. On appeal by one of the plaintiffs the Subordinate Judge granted the principal plaintiff a decree for half of the lands of the first schedule and also in respect of 14-annas share of the second schedule. The first defendant now appeals to this Court. The judgment of the Subordinate Judge is attacked on various grounds and I am asked to send the case back to him for re-hearing.
2. The first point taken is that the learned Subordinate Judge has given the plaintiff a decree declaring his raiyati title when he claimed maliki title and repudiated the raiyati title. It appears, however, from the plaint that what the plaintiffs claimed was a maliki raiyati right, Maliki in itself is a term of no special meaning. It may mean proprietary right or it may mean a lesser right superior to that of the actual cultivator of the land. Even the right of a raiyat who has let his land to an under-raiyat is sometimes called 'maliki' In the present case there was really no need for an express decision as to the exact nature of the plaintiffs' right. The principal plaintiffs and the contesting defendants all based their title to the land as successors-in-interest of one Kusam Bibi, the common ancestor. Her right appears to have been a raiyati one and it was this right which was claimed. As the plaint included a prayer for declaration of a raiyati right, I cannot say that the Subordinate Judge committed any error in decreeing such a right when he found that that right had been established.
3. As regards the land in the first schedule, the case really turns on a heba which is alleged to have been executed by Kusam Bibi in favour of the plaintiffs or their predecessors. The first Court rejected this document as a spurious piece of paper. The learned Subordinate Judge held that he was justified in making the presumption authorised by Section 90 of the Evidence Act and relied on this document. This finding is attacked on the ground that the document in question purported to be signed for Kusam Bibi by Sadatali. It is urged that under Section 90 all that can be presumed is that the signature of Sadatali is genuine but there can be no presumption that Sadatali was authorised by Kusam Bibi to sign on her behalf. In support of this contention, reference has been made to the oases of Ubilack Rai v. Vallial Rai 3 C. 557 : 1 Ind. Dec. (n.s.) 939, Thakoor Pershad v. Musammat Bashmutty Kooer 24 W.R. 428 and Uggrakant Chowdhry v. Hurro Chunder Shickdar 6 C. 209 : 3 Ind, Dec. (n.s.) 137. But these oases are distinguishable from the present case. From the facts stated in the reports, it does not appear that in any of those oases the deed was executed by an illiterate person whose name was signed by some one else on his behalf. In the case of Uggrakant Chowdhry v. Hurro Chunder Shickdar 6 C. 209 : 3 Ind. Dec. (n.s.) 137, the facts are not stated. In the other two oases the deeds were executed by a person who purported to execute them as an agent. Section 90 provides that in the case of documents to which it refers the Court may presume, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. Not only from the signature of Kusam Bibi by the pen of Sadatali but also from the body of the deed it would appear that the deed was actually executed by Kusam Bibi. I have never heard it suggested that the provisions of Section 90 do not apply to a deed executed by an illiterate person whose signature has been made on his behalf. The real distinction between such a deed and the deed referred to in the oases cited is that if Sadatali had not signed with the authority of Kusam Bibi, the deed would be a forgery. In the other oases the signature by the agent without authority would have been merely an act which was beyond his power. I hold that the lower Appellate Court was justified in applying the presumption of Section 90 and relying on this document when he came to a decision in the plaintiffs' favour.
4. It is next contended that the learned Subordinate Judge has relied on other documents without reversing the Munsif's decision that they are not genuine. He refers to these documents jointly as 'various deeds of title put in evidence by the plaintiffs.' The Munsif in rejecting those documents which he rejected stated that he did so on the same grounds on which he rejected the heba. By relying on those documents the learned Subordinate Judge has in effect reversed the finding of the Munsif as to their credibility, and I do not think that the case should be remanded in order that he may repeat, in respect of each individual document, what he stated as regards the hebanama.
5. Another point taken is that there is no evidence of delivery of possession of the land granted by the hebanama and that without such delivery of possession, under the Muham-madan Law the gift is void.
6. But in oases where the donor and the donee both reside on the property, the gift may be completed by some overt act by the donor indicating a clear intention on his part to transfer possession and to divest himself of all control over the subject of the gift. Here Kusam Bibi was living in her house when she made this gift to her sons, the predecessors of the parties. It was sufficient to make the gift valid if she openly consented, as she did, to the entry of the donees' name in the Survey papers.
7. As regards the lands in schedule II both the Courts below have referred to a certain kobala, Exhibit 10, and a khatian. The Munsif says that these documents proved the defendant's title. The Subordinate Judge says that they establish the plaintiffs' title to the 14-annas share. The point depends on the construction of the documents, and before I can say that they have been wrongly construed by the learned Subordinate Judge it would be necessary for me to examine those documents No translation of either document has been put before me and during the hearing of this appeal I was not asked to examine or even look at either document in original. I am, therefore, not in a position to say that the construction put by the learned Subordinate Judge on these documents was incorrect. The respondents have filed' a cross-appeal, their contention being that if the heba is genuine then they are entitled to the entire lands in schedule I. The learned Pleader, however concedes that unless the case is sent back for re-bearing of the appeal, he will not ask for a remand fur a fresh determination on the point. I hold, therefore, that the appeal fails and is dismissed with costs.
8. The cross appeal is dismissed without costs, as it has not been pressed for the reasons stated above.