Finding arrived at by wrongly throwing onus of proof.

This second appeal arises out of a suit filed by respondents 1 and 2 as plaintiffs for partition and possession of their share of the properties left by one Muhammad Ismail Rowther who died on 3rd January, 1948 at an advanced age. Nearly a year before his death on 1st February, 1947 Muhammad Ismail executed a deed of gift conveying his properties to his two sons who were defendants in the suit. Besides these two sons Muhammad Ismail had two other daughters, Hamida Bi and Ayisha. The elder of these daughters Hamida Bi died on 28th September, 1948, leaving besides her husband a daughter. Hamida Bi’s husband is the plaintiff in the suit while his minor daughter by Hamida Bibi is the 2nd plaintiff. The other daughter of Muhammad Ismail Ayisha Bibi has been impleaded as the 3rd defendant.

Substantially the case of the plaintiffs and the 3rd defendant, who naturally supported the plaintiffs by filing a statement accepting the plaint allegations, was that the gift deed dated 1st February, 1947, marked as Exhibit B-1 in the case did not constitute an effective disposition of Muhammad Ismail’s properties with the result that at his death the properties still continued to be his and devolved on the four children who survived him and that on the death of Hamida Bibi a few months after Muhammad Ismail, the plaintiff became entitled to her share as her heirs.

I shall have to refer in some detail to the grounds upon which the gift deed was attacked. But at this stage it is sufficient to mention that the main and substantial grounds upon which its validity was impugned were too. The first was that the deed was got up by the exercise of undue influence on the donor by the donees at a time when owing to the advanced age he was not able to take care of himself. The other ground urged was that the donor was seriously ill as a result of which he was expecting to die with the consequence that the gift became affected by the rule of Marz-ul-Maut and that it could not have effect beyond a third. The learned Subordinate Judge as well as the learned District Judge on appeal have negatived b’oth these grounds of attack and as the finding in relation to both is one of pure fact it is no longer open to challenge in the second appeal.

Having negatived these two grounds of the invalidity of the gift deed, however, the Courts below proceeded to afford relief to the plaintiff son the following basis.

The trial Court decreed the suit in its entirety for the reason that the contesting defendants-donees under the deed-had not positively established that possession of the gifted properties was delivered to them by the deceased after the execution of the deed and that this essential requirement of a valid donation under the Muslim Law had not been established. Defendants 1 and 2 filed an appeal to the learned District Judge, and while upholding the deed to the extent of the residential house which formed one of the items of donation, he confirmed the decree of the Subordinate Judge in regard to the rest of the properties which consisted of lands, etc. The reason for this distinction in regard to the items covered by the deed was that the father, the donor and his sons, the donees, were at the time of the donation jointly living in the house, and certain decisions had laid down that where the donor and the donee were closely related and were jointly residing in or in physical possession of the property gifted, the donor need not remove himself from the property in order to validly effect delivery of possession, to satisfy this requirement of Muslim Law. It is from this decision of the learned District Judge that the second appeal has been filed.

Defendants 1 and 2 who challenge the correctness of the decision of the Courts below that the requirements of Muslim Law as to the delivery of possession to perfect a gift had not been complied with, have filed the appeal in relation to the lands regarding which a decree for partition has been passed in favour of the pl