Decided on March 15,1950

Mt. Shafi -Ul -Nisa Appellant
Mt. Fazal -Ul -Nisa Respondents


Kapur, J. - (1.) THIS is a defendant's appeal against the judgment and decree passed by the Subordinate Judge First Class, Delhi, decreeing the plaintiff's suit for administration of the estate of one Ch. Inam Illahi deceased. On 25th July 1940, Ch. Inam Illahi made a registered deed of gift in favour of his daughter, Mt. Shafi -ul -Nisa and gave possession to her. This document was registered at the residence of the executant on the same day. On 3rd August 1940, Ch. Inam Illahi died, and the death certificate Ex. P -1, printed at page 35 of the printed paper book shows that he died of consumption -duration of illness being three months.
(2.) ON 2nd January 1942, the plaintiff, Mt. Fazal -ul -Nisa, who is a sister of the deceased brought a suit for administration alleging that Ch. Inam Illahi died possessed of property described in Sch. 'A', and that before his death he was under the influence of defendants his daughter and wife; that he was suffering from Maraz -ul -Maut (death disease) and that for about fifteen days before his death he was unconscious, and there one, all documents executed by him, including the deed of gift, Ex, P -1 mentioned above, were invalid, and as the gift was without the consent of the plaintiff who is one of the heirs, it was not valid. She also pleaded that she was entitled, because of the invalidity of the deed of gift, to have the estate administered and after payment of debts, to have the property divided amongst the heirs according to Mohammadan law. She prayed for the following reliefs: (a) The deed of gift Ex. P -1 be declared invalid 'and null and void'; (b) a decree for administration of movable and immovable property left by the deceased; and (c) the debts due by the deceased and his funeral expenses be paid and the remaining property divided amongst the heirs according to Muhammadan law. In reply the defendants pleaded that the deceased did not leave any property at the time of the death because during his lifetime he while in proper senses, gifted away the entire property to his daughter by means of a gift deed with the consent of his sister, the plaintiff, and his wife Mt. Amat -Ullah -Jan, and the donee was put in possession; that Ch. Inam Illahi was not suffering from Maraz -ul -Maut; that he was in his full senses up to the time of death and that the deed of gift was lawfully completed and registered. The allegation of undue influence by the defendants was denied and it was pleaded that the deed of gift was valid. In the additional pleas it was pleaded that the suit could not proceed as an administration suit because Ch. Inam Illahi did not leave any debt or property, and that the plaintiff could not have, her light of succession, determined in a suit of this kind. It was, further, stated that the plaintiff was really asking for partition of the property by means of this suit which the law did not allow her to do, and several other pleas were raised which are not necessary for the purpose of this appeal. The learned trial Judge raised certain preliminary issues of which the most important one is : "(3) Whether a suit for administration is competent on the present allegations of the plaintiff -
(3.) ON 12th May 1943, the learned Judge decided the preliminary issue and on issue No. 3 he held that the suit could proceed. He then framed five other issues which were : (1) Whether the present suit is barred under O. 2, R. 2, Civil P. C. ? (2) Is the present suit barred by estoppel, waiver or acquiescence ? (3) Whether Inam Elahi deceased was suffering from Maraz -ul -Maut at the time of the execution of the deed of gift in question and if so to what effect ? (4) Whether the execution of the said deed was obtained by undue influence, and if so to what effect ? (5) To what relief is plaintiff entitled ?;

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