JUDGMENT

1. This is an appeal on behalf of the plaintiff in a suit for declaration of title to Immovable property and for recovery of possession thereof. The properties in dispute admittedly belonged to one Dapu, the father of the plaintiff and of the defendant. On the 7th September 1907 Dapu. executed a hiba-bil-iwaz in favour of the defendant and had the document registered seven days later. He died shortly after on the 23rd November 907. The case for the plaintiff is that this hiba-bil-iwaz is inoperative and did not create any valid title in the defendant. The validity of the instrument was attacked explicitly on the ground that it had been obtained by undue influence; it was also described somewhat vaguely as illegal and inoperative.

2. In this Court, as in the Courts below, the document has been assailed on two grounds, namely, first, that, as there is no proof of payment of the consideration mentioned in the deed, it cannot take effect as a hiba-bil-iwaz, and secondly, that if it be treated as a deed of gift without consideration, it cannot take effect, as there is no evidence that the properties covered thereby were delivered to the donee. The Courts below have found concurrently that the case of undue influence has completely failed: but upon the two other grounds upon which the deed is assailed, the Courts below have taken divergent views. The primary Court help- that as there was no proof of payment of the consideration mentioned in the deed, it was inoperative as a hiba bil-iwaz, nor could it take effect as a deed of gift as there was no evidence of delivery of possession to the donee. The Subordinate Judge, on the one hand, has held that those questions ought not to be allowed to be raised inasmuch as they are not explicitly mentioned in the pleadings and are not covered by any of the issues as framed. He has, however, discussed both the questions and has held with regard to the first that the burden of proof was upon the plaintiff to establish that there was no consideration for the hiba-bil-iwaz; and with regard to the second, that as the defendant is now in possession of the properties covered -by the instrument and was also practically in possession thereof during the life-time of his father, the gift was operative under the provisions of the Muhammadan Law

3. On behalf of the plaintiff, the decision of the Subordinate Judge has been challenged principally on two grounds, first, that the burden of proof of the payment of consideration for the hiba-bil-iwaz was upon the defendant who relies upon it as the foundation of his title and that as he has failed to prove that the consideration passed as alleged, the deed ought to be deemed inoperative; and secondly, that treated as a deed of. gift with-oat consideration, it is equally ineffectual, because there is no proof that there was any delivery either of the title-deed or of the property to the donee. The decision of the Subordinate Judge has been assailed also on two subordinate grounds; namely, first, that even if the hiba-bil-iwaz be treated as a valid document, it did not vest in the donee a good title; and secondly, that it was not effectual to vest any title in the raiyati-holdings which are not transferable by custom or local usage. These subordinate questions require consideration only if the substantial points in the appeal are decided against the appellant, for if the deed is found to be inoperative, it does not take effect as to any of the properties covered by the instrument, inclusive of the huts and the holding.

4. In so far as the first ground, upon which the hiba-bil-iwaz is attacked, is concerned, it is urged that payment of the consideration mentioned in the deed has not been proved. In our opinion, there is no room for controversy, in view of the decisions of their Lord-ships of the Judicial Committee in the cases of Khajooroonissa v. Roushan Jahan 2 C. 184 : 3 I.A. 291 : 26 W.R. 36 and Choudhri Mehdi Hasan v. Muhammad Hasan 28 A. 439 : 4 C.L.J. 29