JUDGMENT

Niamatullah, J. - This is a plaintiffs' appeal and arises in the following circumstances:

2. The property in dispute in the case belonged to one Ahmad Husain, who died on 10th December 1925, leaving two daughters, Mt. Akbari Begam and Mt. Soghra Begam, the two plaintiffs, and three sons, Rahmat Husain, Shafqat Husain and Azmat Husain, the three defendants. The plaintiffs instituted the suit, which has given rise to this appeal, on 10th December 1928 claiming their legal share in the immovable property entered in list A and in the moveables detailed in list B annexed to the plaint. Subsequently the plaint was amended and several deeds of gifts, which the defendants had relied on in the written statement filed in the meantime, were impugned on the ground that the same had been obtained by the exercise of undue influence. Similarly certain other gifts relied on by the defendants were impeached on the ground that the same, if made at all, were vitiated by marzul maut from which Ahmad Husain was suffering at the time when these latter gifts were made. If all the gifts on which the defence was rested be accepted as valid, it is not disputed that the plaintiffs' suit must be dismissed. The defendants maintained in their written statement the validity of all the gifts therein referred to and claimed that such gifts had been perfected by delivery of possession as required by Mohamedan Law. Other pleas were also taken by the defendants. It was urged that the plaintiffs were not in possession of any part of the property in suit, and therefore not competent to maintain a suit for partition. Another question which arose on the pleadings had reference to the share obtained by Farhat Husain the fourth son of Ahmad Husain under some of the gifts. Farhat Husain predeceased Ahmad Husain, and the plaintiff claimed that even if the gifts relied on by the defendants be valid, Farhat Husain's one-fourth share devolved upon Ahmad Husain, on whose death the plaintiffs became entitled to their legal share in such one-fourth share. The learned Subordinate Judge framed a number of issues embodying the various disputes which arose on the pleadings. The case was fixed for hearing on 16th and 17th May 1929. When the case was called on for hearing on 16th May 1929, Mr. Abdul Rauf vakil put in appearance on behalf of the plaintiffs. He was accompanied by a pairokar named Hikayat Yar Khan, the husband of the plaintiff Mt. Soghra Begam. Defendant Shafqat Husain was represented by Mr. Poshakilal vakil, the defendant Azmat Husain by Mr. Man Mohan Lal, and the defendant Rahmat Husain was present in person. An application signed by the Yakils of both the parties and Hikayat Yar Khan was filed and verified by the pleaders. It ran as follows:

The parties rely on the statement of defendant 1 as regards all the disputed questions in the case including costs. Whatever statement the aforesaid defendant makes will be accepted by the applicants and the case be decided in accordance therewith. The parties do not desire to lead any other evidence in the case.

3. I have given my own translation of the original application, as I think the translation to be found in the paper book is not very happily worded. I have ignored the words "faisle ki babat" occurring at one place in the original application, as they do not quite fit in with the context in which they occur. No difference is however made as regards the substance.

4. It is easy enough to understand why Rahmat Husain was chosen as a referee. The property claimed by him had been gifted to him under a deed executed as far back as 1912. He did not claim under any of the oral gifts which had been pleaded by his two brothers, Shafqat Husain and Azmat Husain, defendants 2 and 3. It was probably realised by the plaintiffs that the deed relied on by Rahmat Husain could not be shown to have been fictitiously executed which was the only ground on which it had been impeached by the plaintiffs. There was probably no real contest