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1. The two subordinate Courts have got rid of this suit on technical grounds. Technical grounds may be insisted upon only where there is real force in the contentions raised. If the pleadings of parties are read, it will be found that the contest was totally different, and only learned Pleaders raised the technical defence. It is admitted that Musammat Badli transferred one-third of 210 yards of land to Musammat Asghari and gifted the sale consideration to her. The two subordinate Courts have held the deed of gift to be invalid (1) for want of possession, and (2) because of the doctrine of musha.
2. Musammat Asghari lived with Musammat Badli and in the deed of gift it is specifically stated that possession had been made over to Musammat Asghari. So it is difficult to understand what larger proof of possession in pursuance of the deed of gift could be brought forward. The defence of one Qasid Ali, brother of Musammat Asghan, makes it certain that Musammat Asghari, did obtain possession. He alleged that the gift was really for his benefit, and that he had obtained possession on payment of Rs. 70 to Musammat Asghari. The real defence, therefore, was that the donee was Qasid Ali, and not Musammat Asghari; that Qasid Ali was in separate possession of one-third share, and that the other defendants should not be disturbed in their separate possession of their two thirds share.
3. As to musha, Musammat Asghari, if she did not occupy the house, was entitled to recover profits of one-third share. In Qasim Husain v. Sharif-un-nissa 5 A. 285 : A.W.N. (1883) 31 : 3 Ind. Dec. (N.S.) 267, it was held that the gift of a one-twelfth share of a muafi estate, being a gift of a specific share, was not open to objection under Muhammadan Law. It is clear that Musammat Asghari, if she did not live in. the house, could have obtained one-third rent. When the deed of gift was made, there is no evidence that the land gave any profit. The land appears to be land of use for building purposes, and there was nothing to prevent Musammat Asghari from building at the tine on one-third of the land. Under the circumstances there is no bar under the doctrine of musha.
4. I set aside the decrees of the two subordinate Courts and remit the suit to the trial Court for a proper trial of the other issues arising between the parties and a decree accordingly.
5. The plaintiff shall receive in any case the costs of the lower Appellate Court and this Court.