The court affirmed that under Muslim inheritance law, consanguine relations (sister and brothers) have precedence over the claims of brothers' sons, validating the oral gift of properties executed by the deceased.

1. This appeal is filed by Smt. Kulsumun - nisa. She was the contesting defendant in the suit. The suit was instituted by Smt. Ahmadi Begum. During the pendency of the appeal she died, and her legal representatives are on record. They are Mohammad Farooq, her son, and Smt. Mahmooda and Smt. Zubaida, her dauthers. The appellant also is now dead, and certain persons have been substituted in her place as her legal representatives.

2. The suit was for partition of her 1/10th share in the plaint properties. It was instituted in 1945. The plaint properties included zamindari, buildings and moveables.

3. We give a short pedigree for the purposes of the case. It is admitted by the parties.Smt. Ahmadi Begum was the half sister of Smt. Ajaib - un - nissa from her father; Fazal Haq and Reazul Haq were her half brothers from her father. They were arrayed as defendants in the suit. They have also claimed partition of their shares in the plaint properties. Smt Kulsumun - nissa is her daughter.

4. The plaint properties belonged to Smt. Ajaibun - nissa. She died on October 24, 1944. Smt. Ahmadi Begum claimed 1/10th share in her properties as her half - sister. Smt. Kulsumun - nissa contested her claim. Her pleas were three - fold. Firstly, she said that Smt. Ahmadi Begum was not an heir to Ajaibun - nissa. Secondly, Ajaibun - nissa had made an oral gift of her entire immoveable property in her favour on December 25, 1942 and that since then she has been in possession over all these properties. Thirdly, Ajaibun - nissa did not leave behind any moveable properties.

5. The trial court decreed the suit and passed a preliminary decree for partition of a 1/10th share in favour of the plaintiff and 1/5th share in favour of each of her two brothers. As the zamindari stood abolished at the time of the passing of the decree the trial court granted a declaration in their favour that they would be entitled to compensation.

6. On appeal before us, counsel for Smt. Kulsumun - nissa has canvassed only two points: (1) Ahmadi Begum was not an heir to Ajaibun - nissa, and (2) Ajaibun - nissa had made an oral gift of her all immoveable properties in her favour.

7. We have narrated only such pleas from the pleadings of the parties as are material for these arguments and have left out other pleas.

8. Re: Heirship, Ajaibun - niss was a Sunni Musalman. Her brother, Ahsanul Haq is dead. Ahsanul Haq left behind two sons, Subhanul Haq and Faiyazul Haq. Both of them are alive.

9. Counsel for the appellant has contended that Subhanul Haq and Faiyazul Haq exclude from the inheritance the consanguine brothers, Fazal Haq and Riazul Haq and the consanguine sister, Ahmadi Begum, as Subhanul Haq and Faiyazul Haq are the owners of two propinquities while the consanguine brothers and sister are the owners of only one propinquity. In support of his argument he has relied on Muslim Law by K.P. Saksena (4th Edition) pages 997 and 998. It is said there that full brother's son should succeed in preference both to the consanguine brother and sister. But Mulla in his Principles of Mahomedan Law (16th edition) table 65 - A has taken the contrary view. According to him, the consanguine brother and sister are to be preferred to the full brothers' son. Following Mulla, the court below has held that Ahmadi Begum is entitled to a share.

10. It may be noted that the consanguine brothers and sisters are residuaries while the daughter is a sharer. Consequently the appellant, who is a sharer, will get one half. Again, Ahmadi Begum, who is the consanguine sister, is a residuary by her brothers and not a residuary with the daughter, the appellant. The brother's sons are residuaries in themselves. So in this case the competition is between