P.L. Bhargava, J. - (1.) THIS is a Plaintiff's appeal. It arises out of a suit for cancellation of a deed of gift executed by Sharfuddin in favour of Husna Jahan. on the 5th of March, 1915, in respect of half share in a house, which originally belonged to Mohammad Husain, who is dead. The plaintiff -applicant, Farid Mian, is the father of Mohammad Husain and the donor, Sharfuddin, was the son of Mohammad Husain. The done Husna Jahan; the defendant -respondent, is related to the donor as his aunt.
(2.) ON the death of Mohammad Husain Sharfuddin as well as Farid Mian were entitled to a share in the house. Sharfuddin instituted Suit No, 61 of 1944 claiming partition of his share in the house against Parid Mian. On the 24th February; 1945, the suit was compromised and under the compromise a half share in the house was given to Sharfuddin and the other half to Farid Mian. Thereafter, on the 5th March, 1945, Sharfuddin made the gift in question. A forthright later Sharfuddin died on the 22nd March, 1945. On the 17th April, 1945, Husna Jahan, the defendant -respondent, applied for execution of the compromise decree in Suit No. 61 of 1944 and to recover possession over the half share allotted to Sharfuddin, which had been gifted to her, Parid Mian, the plaintiff appellant, filed an objection under Section 147 of the Code of Civil Procedure. His petition of objection has been treated as a suit. In his petition of plaint Farid Mian alleged that the deed of gift was invalid as the time of the execution of the same Sharfuddin Was suffering from Marz -ul -Maut or death -bed illness and he was also not in a fit state of mind at the time - The validity of the deed of gift was also challenged on the ground that the possession of the gifted property had not been transferred by the donor to the donee.
(3.) THE defence set up by Husna Jahan, the defendant -respondent; was that at the time of the execution of the deed of gift Sharfuddin was not suffering from any Marz -ul -Maut or death -bed illness: that the transaction was Hiba -bil Ewaz -, and that possession was transferred from the donor to the donee.;