Shamsul Huda, J.
1. The defendant No. 1 is the appellant before us. The appeal is can-final to the properties raferred to in the sohedale3 Nos. 1 and 3 in the plaint. The. plaintiffs claimed a share in these properties as the residuary heirs of one Azim. The defendant No. is the widow of Azim, and she contested the plaintiffs' claim by alleging that Azim had executed a deed of heba-bil ewaz in her favour in lieu of dower and a tasbi. The first Court considered that the consideration alleged in the heba-bil-ewaz did aatually pass On appeal, the learned Subordinate Judge has taken a different view of the fasts., He holds that the claim for dower, which was one of the considerations for the heba as wall as the giving of the tasbi in exchange have not been proved and has accordingly decreed the plaintiff a' suit. It has been urged before us on the authority of the case of Rahimjan Bibi v. Imanian Bibi 15 Ind. Cas. 698; 17 C. L. J. 173, that, even if the pissing of the consideration is not proved, the heba is still valid as a simple gift without consideration. I do not think that that case is in point. There the pleadings were not clear and the ease was remanded for a distinct finding as to whether the consideration. had passed or whether possession was given, In this case, the defendant No. 1 espliitly relied upon the document as a gift far a consideration which has incidents very different; from those of a simple gift. That was the case that was tried in the first Court and that was the case that was tried in the lower Appellate Court. I do not think the dafendant No. 1 can be allowed to change her case at this stage and to claim a decree on the basis of a simple heba accompanied by delivery of possession. So far as the claim on the basis of the hiba-bil-ewiz is concerned, on the findings the document most be held to be invalid. A question was also raised that the plaintiffs did not attack the hiba-bil ewaz on the ground that no consideration had passed. There seems to be no basis for this contention. The plaint clearly states, amongst others, that the document is collusive, illegal and void of consideration; and it is clear from the judgment of the first Court that the attention of that Court was drawn to this question, namely, whether the consideration had or had not passed. It cannot be said that the defendants were taken by surprise.
2. The appeal, in my opinion, fails and must be dismissed with costs.
3. I agree.