O.P. Trivedi, J. - (1.) This is a defendants' second appeal and arises from the judgment and decree dated 21 -8 -1962 passed by the District Judge, Sitapur, upholding the judgment and decree of the Civil Judge, Sitapur. The material facts are briefly as follows:
(2.) Plaintiff -respondent Smt Tayyaba Begam filed a suit for partition in the Court of the Civil Judge in respect of her 1/3 share in three houses Nos. 138, 140 and 144 situate in Mohalla Shaikh Sarai, district Sitapur. It is an admitted fact that the houses in dispute originally belonged to Munshi Ali Mohammad who died in 1929. He had two wives, the first wife having died during his lifetime and on his death the second Wife Smt Afsari Begara survived. The plaintiff -respondent Smt. Tayyaba Begam is the daughter and Sheikh Aftab Hussain defendant -appellant No. 1 is the son of Smt Af -sari Begam who has also since died. The plaintiff and defendant No. 1 are admittedly the sole heirs of the deceased lady. It is further an admitted fact that after the death of Munshi Ah" Mohammad, Smt. Afsari Begam, Sheikh Aftab Hussain, Smt. Najafi Begam, daughter of the first wife and Smt. Tayyaba Begam (plaintiff) were his sole heirs and inherited l/8th, 14/32nd, 7/32, and 7/ 32nd shares respectively. During the lifetime of Smt. Afsari Begam Smt. Najafi Begam executed a deed of gift on 9 -9 -1932 in respect of her 3 annas 6 pies share in respect of houses Nos. 138 and 144 in favour of one Smt. Sajjad Bano and the latter in her turn sold this share in the houses to Smt. Madam Begam, the deceased mother of defendants -respondents Nos. 2 and 3 Sheikh Abid Raza and Sheikh Asghar Raza, Defendants Nos. 2 and 3 claimed ownership in the two houses to the extent of 3 annas 6 pies share on the basis of the gift deed executed by Smt. Afsari Begam (sic) (Najafi Begam?) in favour of Smt. Sajjad Bano and the subsequent sale by the latter in favour of their mother Smt. Mabdani Begam. They alleged that two years after the death of Munshi Ali Mohammad his widow Smt. Afsari Begam had entered into possession of the two houses in lieu of dower debt with the consent of all the heirs of Munshi Ali Mohammad. She died in 1947 and according to them her entire dower debt will be deemed to have been paid off from the usufruct of the houses. Both the plaintiff -respondent and defendant -appellant No. 1 had disputed the title of defendants Nos. 2 and 3 and their mother Smt. Madani Begam as also that of Smt Sajjad Bano on the ground that the gift deed related to undivided share in the houses and was invalid because it was hit by the doctrine of Mushaa and was not followed by delivery of possession in favour of donee Smt. Sajjad Bano and as no valid title was conveyed to her she was incompetent to transfer any share in the houses by sale to Smt. Madani Begam, mother of defendants Nos. 2 and 3. It was further claimed by the plaintiff that Rs. 2000/ - were paid by her husband towards certain debt of Munshi Ali Mohammad and defendant No. 1 also claimed having paid Rs. 1500/ - towards certain debts of Munshi Ali Mohammad. Both the plaintiff and defendant No. 1 claimed adjustment for the said amounts at the time of partition. There was yet another plea raised by appellant -defendant No. 1 and it was that Smt. Afsari Begam had perfected right to the 3 annas 6 pies share which was claimed by Smt Sajjad Bano under the gift deed because she remained in possession over houses Nos. 138 and 144 hostile to her and to defendants Nos. 2 and 3. Smt Mashkura Begam defendant No. 4 and appellant No. 2 before this Court had set up an oral gift in her favour by Smt. Afsari Begam in respect of house No. 144 and claimed exclusive ownership of the house on that basis.
(3.) So far as the present appeal is concerned it is sufficient to mention that according to the finding of the trial Court the gift deed in favour of Smt Sajjad Bano was not hit by the doctrine of Mushaa and that Smt. Afsari Begam had not perfected title to houses Nos. 138 and 144 against defendants Nos. 2 and 3. The trial Court found it proved that the husband of plaintiff had paid Rs. 2000/ - to the creditors of Ali Mohammad and that defendant No. 1 had also paid Rs. 1500/ - towards the debt of Ali Mohammad but rejected the claim of defendant No. 1 for adjustment to the extent of Rs. 1500/ -. Then there was also a finding that Smt. Afsari Begam had been in possession of the three disputed houses in lieu of her dower debt after the death of her husband and that plaintiff and defendant No. 1 were in possession in lieu of the dower debt of their deceased mother in the ratio of l/3rd and 2/3rd shares respectively. The contention of defendants Nos. 2 and 3 that the dower debt had been liquidated was negatived. The share of defendant No. 1 was assessed at 50/96th in the houses in suit, that of plaintiff at 25/96th and of defendants Nos. 2 and 3 at 21/96. The suit for partition was decreed with this direction that the plaintiff and defendant No. 1 shall be entitled to remain in actual possession of the houses in lieu of dower debt of their deceased mother in the ratio of l/3rd and 2/3rd respectively till defendants Nos. 2 and 3 obtained declaration to the effect that their share in the dower debt had been paid up or till they actually paid off the same to plaintiff and defendant No. 1. It may be mentioned here that both the Courts had rejected the contention of Smt. Mashkura Begam defendant No. 4 that there was an oral gift in her favour by Smt Afsari Begam.;