JUDGMENT

Piggott, J. - The plaintiff in this case claims certain Immovable property as heir to her father and to her mother. For a reason which is sufficiently obvious the plaint is carefully silent on the question of the actual division of inheritance upon the father's death. But the case for the plaintiff may be put as follows : Her father, Sheikh Najibuddin, died leaving him surviving a daughter, a widow and a brother. The brother took possession of a 6/16ths share of the estate and has continued in possession since. The mother died shortly afterwards and her surviving heirs were her daughter (the plaintiff) and her father, who is the defendant in the present suit. What actually followed upon the widow's death was that the plaintiff and the defendant each obtained possession of one half of the estate of Najibuddin after excluding the 6/16ths share in the possession of his surviving brother, that is to say, they took possession of 5/16ths of the estate each. Now the plaintiff's case is that, when her father died, the devolution of the estate according to the rules of Muhammadan Law was 6/16ths to the brother, 2/16ths to the widow and 8/16ths to the plaintiff, the daughter of the deceased. Then, when the widow died, her share of 2/16ths should be apportioned equally between the plaintiff and the defendant. Consequently, the plaintiff's case is that the defendant is in wrongful possession of the Immovable property left by his late son-in-law to the extent of 4/16ths, or one-quarter of the whole. To this the defendant replied by calling attention to the question deliberately passed over in the plaint, namely, the actual devolution of the inheritance on the death of Sheikh Najibuddin. He said that the widow Musammat Naziran actually took possession of 10/16ths of the estate, and the daughter (the present plaintiff) took nothing at all. He further pleaded that this took place in virtue of a transaction which constituted a transfer by the plaintiff of her share in her father's estate in favour of her mother, the consideration being the claim of the latter for dower-debt.' This being the case, the defendant further claimed that upon the death of the plaintiff's" mother, he succeeded lawfully by inheritance to the 5/16ths share in the estate left by Sheikh Najibuddin which is actually in his possession. The other 5/16ths share then passed by inheritance to the plaintiff, that is to say, by inheritance from her mother. But the case set up by the defendant was that she had no title whatsoever to dispossess him from any portion of the property actually in his possession. The case went to trial upon issues framed in accordance with these pleadings, but the Court of first instance came to the conclusion that the defendant only partially proved his case. The finding of the learned Munsif was that, upon the death of Najibuddin, nothing took place which could amount in law to a transfer by the plaintiff of her rights as heir of her father, but that the plaintiff did consent to her mother's taking possession of the entire 10/16ths share, that is to say, of the whole estate excluding the portion which devolved upon the brother of the deceased, and continuing in possession of the same in lieu of her dower-debt. Having arrived at this finding of fact, the Court of first instance proceeded to apply the law as laid down by a Bench of this Court in Ali Baksh v. Ala Dad Khan 7 A.L.J. 567 at. p. 576 : 6 Ind. Cas. 376 : 32 A. 551 and held that the defendant had inherited from his daughter, that is to say, from the widow of Sheikh Najibuddin, the right to peaceful possession in lieu of the unpaid dower-debt previously enjoyed by the widow herself so that the plaintiff was not entitled to dispossess him without first paying her rateable share of the aforesaid debt He then proceeded to come to a finding on such evidence as had been produced before him as to the amount of the dower debt which he held to be Us. 5,000. Without pausing to take into considera