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1911 DIGILAW 215 (ALL)

Enayat Khan v. Abdul Rahim

1911-06-08

KNOX, PIGGOTT

body1911
JUDGMENT : KNOX, J. 1. The appeal before us has been brought by one Enayat Khan, who was plaintiff in the court of first instance. The property in suit is described as certain bighas and biswas situate in mauza Anuppur Dibai. Regarding this property the plaintiff in his plaint says that one Musammat Muniran, whose name had stood fictitiously recorded in the khewat along with his name, had executed a deed of gift in favour of her brother, Abdul Rahim. He further alleges in the plaint that Musammat Muniran had never been in possession of the property, and that Abdul Rahim, her donee, had never received possession since the execution of the deed of gift. He asked the court to cancel the said deed of gift. 2. The court of first instance found that Musammat Muniran was in possession of the property before she executed the deed of gift, but finding further that although mutation of names had been effected in favour of Abdul Rahim, as there was nothing to show that donee, had he received share of the profits of the property, it considered the deed of gift to be invalid under the Muhammadan Law and decreed the plaintiff's claim. 3. The lower appellate court has in our opinion taken a sounder view of the Muhammadan Law on the subject. The property is not property which would fall under the definition of property known as mushaa in the Muhammadan Law. It also found that the transfer of the property by Musammat Muniran to her brother had been completed by mutation of names and was therefore a valid gift. In this Court it is again contended that the gift is invalid and further that mutation of names is not sufficient. The appellant asks us to require the court below to find whether there has been actual delivery of possession. In our opinion both pleas fail. We have already held that the property in dispute is not the property which is known as mushaa. Further, as the Revenue Courts are required by law to look into the matters of possession, the reasonable inference, until the contrary is shown, is that mutation of names has followed actual delivery of possession. The appeal is dismissed with costs.