Sibghat Ullah Khan, J. - (1.) HEARD Sri Ramendra Asthana, learned counsel for the appellants and Sri S.K.Mehrotra, learned counsel for the respondent No.1. This is plaintiffs' second appeal arising out of O.S. No.361 of 1993. In the plaint plaintiffs appellants claimed that their grand -mother Smt. Sharifan had 1/4th share in the house in dispute and even though on 11.06.1962 she had sold her share through registered sale deed in favour of Gulam Nabi, however the sale deed was void as specific portion of the house in dispute was sold while Smt. Sharifan had unspecified share hence thereafter on 21.04.1964 she executed an oral gift in favour of her sons and daughters i.e. plaintiffs or their fathers and mothers. It was further pleaded in the plaint that in case sale deed dated 11.06.1962 was held to be illegal, plaintiffs' share was 7/36 in the house in dispute, however if the sale deed was held to be valid then plaintiffs had 11/72 share as they had also inherited the share of Smt. Miskin Bano, who was married to Mohd. Idris father of plaintiffs No.1 to 4. The trial court held that sale deed executed by Smt. Sharifan on 11.06.1962 was perfectly valid. Accordingly , the suit was not decreed for 7/36 share, however it was decreed for 11/72 share, i.e. the share of Smt. Miskin Bano. Plaintiffs did not file any appeal. Defendant respondent No.1 filed appeal. Obviously it was only in respect of 11/72 share of the plaintiffs which had been decreed by the trial court. In spite of it, lower appellate court wasted lot of time in upholding the sale deed of 1962. Half of the judgment of the lower appellate court is regarding validity of sale deed dated 11.06.1962. It was utterly unnecessary. In respect of share of Smt. Miskin Bano lower appellate court held that it had been gifted to respondent No.1. The findings appear to be prima facie illegal as they are not based on any evidence. Even date of alleged oral gift by Smt.Miskin Bano in favour of respondent No.1 has not been mentioned in the judgment .
(2.) ACCORDINGLY , the appeal is admitted on the following substantial question of law: Whether the finding of the lower appellate court that Smt. Miskin Bano had orally gifted her share in the house in dispute to defendant respondent No.1 is erroneous in law as it is based on no evidence and even the date of the alleged oral gift is not mentioned in the judgment of the lower appellate court? Issue notice. Steps to serve unrepresented respondents shall be taken both ways i.e. through ordinary process as well as registered post.
(3.) ISSUE notice. Steps to serve unrepresented respondents shall be taken both ways i.e. through ordinary process as well as registered post.;