P L D 1957 (W (PLP)

CONSTANTINE, J.

Sir Shamas Shah and his wife perished in the Quetta earthquake in May 1935. The respondents are the heirs of Sir Shamas Shah, and the appellants are the heirs of his wife. Three of the respondents (supported by the other respondent as defendant 4) sued the appellants for possession of two plots of land. One plot contained a bungalow called Farhat Manzil, the name of Lady Shamas Shah : the learned Judge upheld the defence that this plot and bungalow had been given at the marriage by Sir Shamas Shah to his wife by way of dower, and no appeal has been lodged by the respondents regarding this part of the decree. The other plot, purchased admittedly by Sir Shamas Shah contained two bungalows at the date of the suit, and the learned judge held: "I am not satisfied on the evidence placed before me that the Nawab made a gift of this property to his wife." The plaint, filed in 1944, stated that Sir Shamas Shah had been the owner of the properties till his death in '1935, and the plaintiffs and defendant 4 were his heirs. In para. 4 it said "The defendants 1 to 3 are in wrongful possession of the aforesaid immovable properties, which they have no right to hold." Para. 5 states "The said defendants 1 to 3 contend that they are the heirs of Lady Shamas Shah, wife of the deceased Nawab Sir Shamas Shah, on the ground that Lady Shamas Shah survived Nawab Sir Shamas Shah. The said plea however was negatived by the Court of Senior Sub-Judge of Peshawar in Suit No. 96/1 of 1937, filed by defendant 1 and another, which decision is binding upon the defendants". (Pausing here it may be said that the case has been argued before us by both sides on the basis that the plaintiffs and defendant 1 are the only heirs of Sir Shamas Shah and the defendants the only heirs of Lady Shamas Shah). Para. 6 states that defendants 1 to 3 had been called upon to hand over possession, but had wrongfully refused to do so. Para. 7 stated that the cause of action arose on 31st May, 1935 when Sir Shamas Shah died and when the defendants denied the plaintiffs' claim, and refused to hand over possession. Para. 10 prays for possession, mesne profits and costs. The written statement alleged that Sir Shamas Shah had given his wife both the properties, and she was owner of the properties at her death. The only material issues framed by the Court were whether the gifts had been made ; and the general onus was thrown upon the defendants who led their evidence. For the plaintiffs in reply only, plaintiff 1 was examined and he stated nothing as to the gifts or the possession of Lady Shamas Shah alleged in the evidence of the defendants. The appellants have contended firstly that the gift should be held proved, secondly that a mistake regarding mesne profits was made in the decree which awarded mesne profits from 1935 instead of from three years before the date of Suit (and this mistake is conceded by the respondents), and thirdly that the learned judge erred in law by not putting the respondents to proof of their possession within 12 years before the date of suit as required by Article 142 of the Limitation Act. This third point was not taken even in the appeal memorandum. The written statement pleaded a gift by Sir Shamas Shah to his wife ; it is true that to perfect a gift possession must be transferred, but apart from the inference that the possession of Lady Shamas Shah was thus tacitly pleaded ,the written statement said nothing about her possession or the period of her possession. Assuming that Article 142 of the Limitation Act applied, when the issues were framed and the parties proceeded to trial, there was nothing on the record to make it appear that the alleged gift had been made or possession taken more than twelve years before the date of the suit, and thus the learned judge was under no obligation to raise any issue of limitation. This being so, the appellants having admitted the anterior title of Sir Shamas Shah and having alleged as their sole defence a gift by Sir Shamas Shah to his wife were bound to prove the gift. The burden initially caste by section 110, Evidence Act had been discharged by the admission of Sir Shamas Shah's anterior title. In Raja Perh1ad v. Doorgapershad (12 M I A 322) it was held that the plaintiffs prima facie title as Zemindar being admitted, it lay upon the defendants to prove the alleged grant of an hereditary intermediate tenure at a fixed rent. Upon the merits the evidence for the defence is mainly divided into admissions made by the Nawab of gift and evidence of possession by Lady Shamas Shah. Regarding admissions we have the evidence of Mrs. Anklesaria Jugarnath Tandan, defendant 1, and Shaikh Mahmood Aziz (examined on commission). Mrs. Anklesaria was a close friend of Lady Shamas Shah both during her regular visits to Karachi from Bombay during her marriage to see her parents and after 1930 when as a widow she settled in Karachi and taught both Lady Shamas Shah and her sister. She was present at the Nikah in 1925. In-examination-in-chief she said, "It (the property on Mary Road) was bought by the Nawab and given to his wife as a present. Lady Shamas showed it to me. After that the Nawab Sahib said he had given it to Lady Shamas Shah. This was a few years after the wedding". In cross? examination she said, "The conversation that I had with the Nawab Sahib about Mary Road property was this. I told him 'The Lady Sahib showed me yesterday the building that you have presented to her. It is very nice'. He said 'Did you like it'. I said 'Yes' it was very nice". When I first saw the Mary Road property there was only one Bungalow there. Afterwards Nawab Sahib constructed another Bungalow", and again "Lady Shamas Shah had taken me to Mary Road property before 1930". In re-examina?tion she said, "About Mary Road property Lady Shamas Shah had said to me' We have built another bungalow there". I agree with the learned judge's comment that the effect of this evidence is that the Nawab gifted this property to his wife when there was only one bungalow on it. Jaganath Tandan, whom the learned judge described as a very respectable witness, was a neighbour in Karachi of the Nawab who used to stay both at Quetta and Karachi. He stated that some time after the Nawab purchased the Mary Road property, a bigger bungalow was built on it, and after that exactly how long he could not say-the Nawab told him that this bigger bungalow belonged to his wife and he wanted it to be let out on a high rent. He deposed to the fact that Major Khory and sometimes Ali Muhammad looked after Farhat Manzil in the absence of the Nawab and his wife. Defendant 1 produced the sale-deed dated 31st March 1927 and, said that within two years of the purchase the Nawab constructed the second bungalow, The Nawab had let out both the bungalows. After the second bungalow was constructed the Nawab made a gift of this property to his wife for her maintenance because she had no issue. The rent was collected by Major Khory and Ali Muhammad and was said to Lady Shamas or her brother (defendant 3). In 1937 the witness applied to the City Survey Officer for mutation of the entry in the survey record : there too he alleged an oral gift in 1929 after the construction of the new bungalow and he stated that Ali Muhammad and Major Khory would "be able to certify." Ali Muhammad states that after a year of the purchase a second bungalow was built, and in either late 1928 or early 1929 the Nawab told him that the two bungalows on the property belonged to Lady Shamas Shah and asked him to collect rent. He managed the property for about three years, and sent monthly bills and six monthly statements of account to Lady Shamas Shah, who observed purdah. Major Khory looked after the property both before and after him. He paid taxes and got repairs done He deposed to six statements of account beginning on 1st April 1929 and ending 31st May 1932. The first account opens with a balance of Rs.

661. The account finally closes with a balance due to Ali Muhammad of Rs.

287. The expenses of the two bungalows and of Farhat Manzil had swallowed up the rents received and the opening balance. This witness was an Honorary Magistrate from 1932 to 1937, and thus though he had to close his business in 1937 at the time of these accounts, he was obviously a man of respectability. The last witness Sh. Mahmood, examined do commi?ssion, was present at a conversation seven or ten years before when Sir Shamas Shah visited his father at Lahore: Sir Shamas Shah said he had given his wife Farhat Manzil in dower and subsequently some other properties at Karachi, but the witness did not know these properties. Regarding this evidence of admissions the learned Judge noted the discrepancy between the statement of Mrs. Anklesaria who said in effect that the gift had been made before the construction of the second bungalow and the statements of the other witnesses. Certainly defendant 1 definitely times the gift after the construction of the second bungalow, and the other witnesses (Ali Muhammad, Juganath and Sh. Mahmood) came to know the gift only after the second bungalow had been built. The evidence as to the time and place of the gift is rightly called very vague and indefinite. The purchase by the Nawab took place admittedly in 1927. Ali Muhammad and defendant 1 place the gift as at the latest in early 1929. Juganath's evidence would agree with this. Sh. Mahmood is obviously very vague as to the time, and also the identity of property in Karrachi gifted by the Nawab other than Farhat Manzil. I think little reliance is to be placed on either Sh. Mahmood or Mrs. Anklesaria, who was confused in other respects in her evidence. The learned judge continued that .the Nawab had no issue and therefore even if he said to some other person that the property belonged to his wife it would not be inconsistent with the position that no gift had been made to the wife and that the Nawab only out of respect and love was mentioning it was the property of his wife. As to this I think that the fact that there was no issue was as much a motive for a gift as for the creation of an appearance of a gift. One has also to remember that the marriage admittedly was boycotted by the Nawab's own family as his mother disapproved of it, and that the Nawab was an elderly man while his wife was young. He had also considerable other property. Thus the story of a gift is not intrinsically improbable. The learned judge was impressed by the fact that though the purchase of the Mary Road property is noted in Exh. 15, the gift of the property is not marked. Now Exh. 15, written by the Nawab himself in pencil, purports to be a list of his property. Fourteen items are serially noted and thus appear to have been written at one and the same time before 1927. We then get some further items listed, one of these being the purchase of the bungalow on Mary Road. There are certain other items later than 1930. Opposite item 12-a debt incurred by defendant 1 and his wife in 1926-is a note that the debt had been reduced in 1931 from Rs. 10,000 to Rs. 4,000 by payment of Rs. 6,

000. As regards the Mary Road property it is to be noted that the list contains no mention of having built a second bungalow. The item of the Farhat Manzil includes the contemporaneous statement that he had given it to his wife. The learned judge remarked that there was no reason why he should not have mentioned the gift in 1929 of the Mary Road bungalow in Exh. 15, which he was bringing up to date: the defendant argues that there is equally no reason why he should not have mentioned the construction of the second and bigger bungalow on this same property, or rather that as he had given the property to his wife he was not concerned in revising this item. We have no evidence on record to show whether this list was accurate and exhaustive in 1931 or whether items not amended required correction. It is entitled "Will", but there are no testamentary directions of any kind. Besides the evidence of admissions, we have the accounts sworn to by Ali Muhammad and the letters of Major Khory. Ali Muhammad's accounts are written in pencil; an explana?tion is that possibly pencil was used to obtain a carbon copy in the days before ball pointed pens : but in any case no cross-examination was directed to this point. The witness said in examination-in-chief that he used to send her the accounts and pay her the balance : but in cross?examination he said he never made any cash payment to her she observed purdah-and the accounts show that: no cash was ever paid out by way of balance, for expenses absorbed the rents. The internal evidence shows that Farhat Manzil and Lady Shamas Shah's personal bills at his shop-some at least-were also included in these accounts. Ali Muhammad states he used to pay taxes : the defendant 1 says that the Nawab's agents-we only know of Ali Muhammad and Major Khory-paid the municipal taxes for these properties up to the Nawab's death : Certainly the expenses bill on Farhat Manzil and the other two bungalows was large enough to include municipal taxes. These accounts of Ali Muhammad were found in the boxes of Lady Shamas Shah as also was the chit Exh.

16. This Exh. 16 is a rough note written by the Nawab upon a piece of foolscape paper saying "Papers and accounts of the income of rent and expenditure in the handwriting of Ali Seth at Karachi." The defendant 1 states a box of the Nawab was found locked and handed over to the Political Agent for safe custody: Exh. 15 came from this box. The sale-deeds came from Lady Shamas Shah's boxes. There was no cross-examination on this point, and Exh. 6 shows that counsel of the present plaintiffs applied to the Court at Quetta that a box of Sir Shamas Shah with the Political Agent should be sent for. There can, therefore, be no doubt that Ali Muhammad did submit accounts of rent and expenditure. It is argued for the plaintiffs that the note, Es. 16 being in Sir Shamas. Shah's writing, shows that Ali Muhammad submitted the accounts to him and hence we should infer that the accounts exhibited are forgeries or that the Nawab never parted with possession. The learned judge has not criticised the honesty of the witness : the only question in cross-examina?tion was "our firm sustained heavy losses and was therefore closed": regarding the accounts the only points made were that he never contacted the purdahnashin, lady personally or made any cash payments, and it is these points which the learned Judge mentions in his judgment in dealing with this witness. Summarising defendant 1's evidence in the previous paragraph he had set out the statement that the rent was collected by Major Khory and Seth Ali and paid to Lady Shamas Shah or her brother. Possibly the learned judge considered that there was a discrepancy between the two witnesses, but he did not refer to Exh. 16 in his judgment. An explanation which would be consistent with the writing of the Nawab is that he assisted his wife in docketing her papers, and it is to be remembered that defendant 1 says he fdund Exh. 16 not in the Nawab's locked box, but in the kit of Lady Shamas Shah, a statement on which he was not cross-examined. We then have ,the letters of Major Khory who died in 1946, admittedly a friend of the Nawab. The "very respectable" witness, Juganath, says he looked after Farhat Manzil in the absence of the Nawab and his wife. The learned judge ruled out the evidence of Mrs. Khory taken on commission for reasons which satisfy us in appeal. Three documents Exhs. 17 to 19 are clearly admissible under section 32 of the Evidence Act since they were against the Major's pecuniary interest. The first is dated May 1935 and addressed to defendant 1 ; the second is undated in the paper-book, both the original shows 18th February 1932, as the date it is addressed to defendant 3, the third is a receipt dated 6th March 1929. Each mentions the Mary Road property as hers, each acknowleged money received from her for repairs to her Mary Road property and one contains also a demand for money for repairs to the pump in Farhat Manzil. The fourth letter Exh. 20, was brought on recoird without a trace of objection, and presumably the plaintffs conceded that it was written in the ordinary course of business. Here in February 1934, we find Major Khory asking defendant 1 to use his influence with LadyShamas Shah to conlsent to some desirable alterations to the Mary Road bungalow. The Nawab when approached had given the usual answer and had referred him to the Lady Sahib. Bashir's approach had not been successful. Major Khory said "I still request you to convince Lady Sahib that money spent on staircase will pay her in the long run". Even though the letter may not be admissible as a statement under section 32 of the Evidence Act, yet the letter is udmissible as evidence of a relevant fact, namely that the manager (proved aliunde) writes to obtain the permission of Lady Shamas Shah as the person competent and entitled to decide upon alterations to the property. The learned Judge's only comment on these letters was that they do not prove the gift and are quite consistent with the Nawab's ownership of this property. I infer that he had no doubt of their authenticity. They refer to the property as "her" money spent on the bungalows is received from her, not the Nawab : the letters are addressed not to the Nawab, but to the wife's relatives : they were written by a person who was in the best position to know the truth as managing the property and who was admittedly a friend of the Nawab. In my opinion this positive, documentary evidence outweighs the negative omission from Exh.

15. Exh. 18 being dated 18th February 1932, overlaps the accounts of Ali Muhammad, which are up to May 1932 ; but their management may have overlapped in fact. The Nawab did not make any mutation of names : but this applied both to Farhat Manzil as well as to the Mary Road property. The reason given that as a Sayad he did want the name of his wife, a purdanashin, to appear in the record-was accepted as reasonable by the learned judge: it is argued that her name was published in the name of Farhat Manzil, but that is very different from the troubles that may attend a person who is recorded as the owner of bungalows. It is also true that the Nawab left nothing in writing (and further neglected to amend Exh. 15) to show that he had made a gift, and that the gift was not made in the presence of witnesses, and that its time, place and date are vague. The substance, therefore, of the defendant's case is that Ali Muhammad and Jugar Nath say that the Nawab admitted the property belonged to his wife, and the accounts of Ali Muhammad and the letters of Major Khory show that the E property was called hers and that rents were paid to her. From this we are, according to the defendants, to deduce a declaration of gift, acceptance, and delivery of possession: Now had there been an unequivocal declaration of intention such as a gift-deed or mutation of names, then the relation of husband and wife would go far to curing any ambiguity as to possession ; but the receipt of rents in the absence of F any evidence as to attornment of tenants (and on this point Ali Muhammad was not questioned) does not establish by itself either an intention of gift of the corpus or a delivery of possession of the corpus, and the admissions of ownership are ambiguous, since such words might be used to indicate only that Lady Shamas Shah was allowed to receive the rents. Taken individually and together as a whole these items of evidence do not formally establish a gift of the corpus which alone would establish the defendant's title and after much hesitation I have come to .the conclusion that there is not sufficient ground for me to infer such a gift. If Sir Shamas Shah intended a gift of the property, he could have made his intention plain, but there is no admission or act of his from which the intention can be plainly inferred. The most that can be said is that he might or might not have made the gift alleged, but there is no pre?ponderance of probability in favour of the gift. The decree should be varied as to mesne profits. The terminus a quo of mesne profits should not be 31st May 1935, but three years before the date of suit. Otherwise the decree should be confirmed. The appellants do pay three quarters of the costs of the respondents in one pet of this appeal. WAHIDUDDIN, J.

I agree with the conclusion reached by my Lord, Sir George Constantine. As my appreciation of evidence is different, I propose to give a separate judgment. The dispute relates to the two properties alleged to have been left at Karachi by Nawab Sir Shamas Shah who died in the earthquake at Quetta on 31st May 1935. Respondents are the nephews of the deceased and are his heirs under the Muhammadan Law and claimed the said property left by the deceased. The property in dispute is a bungalow known as Farhat Manzil situated on McNeil Road Karachi, and another property with two bungalows situated on Mary Road, Bath Island, Karachi. The appellants are the heirs of the deceased Lady Shamas Shah who also died in the earthquake at Quetta on the 31st of May 1935. After .the death of the deceased Sir Shamas Shah, the respondents filed a suit for the recovery of the possession of the above-mentioned property inter alia on the ground that these belonged to the deceased and the respondents being the heirs of the deceased are the lawful owners, and the appellants are in wrongful possession of the same. The suit was contested by the appellants on the ground that the bungalow known as Farhat Manzil situated on McNeil Road was given by the deceased Sir Shams Shah at the time of nikah to Lady Shams Shah in lieu of dower. The appellant further contended that the two bungalows situated at Mary Road Karachi were also gifted to the deceased lady the respondents were not entitled to the said property and the suit for possession was liable to be dismissed. The suit was contended by the parties, and the learned judge, after recording evidence in the case and considering all the material on the record, dismissed the respondents suit with regard to Farhat Manzil. holding that the said property was gifted by the deceased Sir Shams Shah in lieu of dower at the time of his nikah to Lady Shamas Shah somewhere in 1924. With regard to the remaining property, the learned judge held that the property situated at Mary Road belonged to the deceased and formed part of his estate and that the appellants had failed to prove that any gifts of these properties were made in favour of Lady Shamas Shah as alleged by them in the written statement. Consequently the learned Judge decreed the suit for possession with regard to Mary Road property. During the course of arguments it was admitted that the respondents have taken possession of the same after the passing of the said decree. The appellants claiming themselves to be the heirs of Lady Shamas Shah have appealed against the decision of the learned Judge with regard to Mary Road property. The respondents however have not filed any appeal with regard to the property known as Farhat Manzil and, therefore, the only question for determination in this appeal is about the two bungalows situated at Mary Road, Karachi. During the course of the arguments, Mr. Dingomal and Mr. Riaz Ahmed learned counsel for the appellants, raised a plea that the suit of the respondents with regard to Mary Road property should also be dismissed, as they have failed to prove their possession within years of the filing of the suit. In short, the argument of the learned counsel for the appellant be summarised in this way : that in a suit for possession based on title, it is not only necessary for the plaintiffs to establish that they are the owners of the property but also the fact that they were in possession of the property within 12 years of the filing of the suit. They have therefore urged upon us that the question of limitation being of a far?reaching character, should be allowed to be taken in appeal during the course of arguments. It will be noteworthy to mention that the plea of limitation was neither taken in the written statement by the appellants before the learned trial Judge nor was it raised at any time during the course of the trial : in fact, this plea of limitation was not even taken in the memo of appeal filed in this matter. The question of limitation is not a question purely of law, but is a mixed question of law and fact. There is no doubt that, in certain circumstances, it may be possible to determine the plea of limitation purely on consideration of the facts established on the record, but in a case where no such plea was ever raised or where it is admitted that before deciding this particular plea it will be necessary-to give an opportunity to the respondents to establish that they were within 12 years of the filing of the suit in possession of the property. I am at a loss to understand how such a plea can be allowed to be raised at such a late stage of the proceedings. The learned counsel for the appellants in this connection referred to section 3 of the Limitation Act, and contended that it was not necessary for the defendant to specifically raise the plea of limitation in the pleading. It was the duty of the Court to suo moto raise such a plea if that was necessary in a particular case. The broad proposition of law is that in a suit for possession whether a plea of limitation has been raised or not, it is the bounden duty of the plaintiff not only to establish his title, but also to prove his possession within 12 years, and, this being so, it is also bounden duty of the Court while framing the issues to also raise an issue of limitation. I repeatedly inquired from the learned counsel for the appellants to cite any authority in support of their contention, but they failed to produce any authority in support of this proposition of law. The authorities cited by them are either under section 110 of the Evidence Act or under Article 142 of the Limitation Act. Section 110 of the Evidence Act reads as follows :- "

110. When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving, that he is not the owner is on the person who affirms that he is not the owner." According to the learned counsel the appellants being in possession of the property at the time of the filing of the suit, it was incumbent un the part of the respondents to show that the appellants were not the owners of the property, and, in doing so, they must have also shown that they were in possession of the property within 12 years of the filing of the suit. Section 110 of the Evidence Act certainly does not lay down any such proposition. Under section 110, it is only required that if a person or a party is in possession of the property in dispute, then the party claiming to be the owner of the property should establish that he is the owner of the property and not the party in possession. It is not necessary under this section for the plaintiff to show that he was in possession of the property within 12 years of the filing of the suit when such question is not raised in the pleadings by the parties. The law on the point is very clear. If the plaintiff can by producing documents in evidence establish that he is the owner of the property, then it is for the defendant to establish that the documents of title relied upon by the plaintiff should not be believed, and his title has not been proved. A similar question arose in a case reported in A I R 1948 Oudh 54, which lays down that the effect of section 110 is that if a person is in possession, his title is presumed until the title of some other person is proved. Once the initial title of another person is established the section no longer applies and the possessor must prove that that title has somehow or the other been terminated either by transfer, succession or adverse possession. The other contention of the learned counsel for the appellant, that in a suit, for possession, without raising the plea of limitation, it is the duty of the Court to raise an issue on the question of limitation burdening the plaintiff with the proof that he was in possession of the property within 12 years of the filing of the suit, is also without force. In the present case, as has been stated above, the plaintiffs came to the Court on the allegation that they had inherited the property from deceased Shamas Shah, and that the defendants are in wrongful possession, of the property and that they were entitled to a decree for possession. The defendants contested the case on the plea that the property in dispute was gifted to Lady Shamas Shah during her lifetime and they being the heirs of Lady Shamas Shah are entitled to it in that capacity. No allegation was made either in the plaint or in the written statement about possession or dis?possession, or about the fact that the plaintiff was not in possession of the property within 12 years of the filing of the suit. Even the defendant did not mention in the written statement when the alleged gift was made in favour of Lady Shamas Shah. A general allegation about gift was made. In these circumstances, it was impossible for the learned judge to imagine that the question of limitation is involved in the present case. This being so, the contention of the learned counsel for the appellant that the Court below was negligent in not raising the plea of limitation, cannot be accepted. The learned counsel for the appellant further argued that even if the plea of limitation was not raised in the trial Court or in the memo of appeal, they should be allowed to raise it in arguments. It is true that a plea of limitation can be raised in a Court of last resort, but for that it is necessary that there must be sufficient material on the record to decide such question. It is admitted that none of the parties have led evidence on this question, the evidence on the question of possession is very meagre, and, therefore. it would be necessary to remand the case for allowing the parties to lead evidence in support of their contention. As observed above, it was incumbent on the defendants to raise this particular question in their written statement or at least in the memo of appeal. This being not done, it will be most unfair and unjust at this stage to allow them to raise the plea of limitation and to remand the case for this particular purpose to the trial Court. The question whether the plea of limitation should be allowed for the first time in arguments in appeal has been considered in several judicial decisions not only by several High Courts but also by their Lordships of the Privy Council, and the consensus of opinion is that if the plea of limitation in a particular case is a mixed question of law and fact, then it will be highly improper to allow the plea to be raised and to remand the case for determining this question. In this connexion reference can be made to cases Shankarlall Warayandas v. The New Mofussil Co. Ltd. (A I R 1946 P C 97), Bhupendra Narain Sinka v. Rapeswar Prasad (A I R 1931 P C 162), Mudanna Virayya v. Mudanna Adenna (A I R 1930 P C 18). dames Richard Rannel Sknvier v. Kunwar Naunihal (A I R 1929 P C 158), Huradhun Mookurjia v. Muthoranath Mooku Rajia Moores (4 (Moores) I A 414) and Gopal Fateh Singh v. Sis Ram. In all these cases the plea of limitation was not allowed to be raised. In A I R 1949 E P 283, the following observations were made : - "Where the question of limitation is not a pure question of law and is raised neither in the trial Court nor in the grounds of appeal the appellant cannot be permitted to argue the question in appeal." In A I R 1930 P C 18, it was observed :- Although the plea of limitation may have been mentioned in the written statement and in the grounds of appeal, if no issue is directed to bear upon the question before the trial judge and the point has not been taken at the Bar during the trial it cannot be allowed in appeal." In 1929 P C 158, their Lordships made the following observations :- "It is highly irregular for any Court either to assume without the admission of all the parties that the material facts are not in dispute or to proceed or to draw inferences from those facts where no evidence has been placed before the Court. The position is not improved even where the matter is mooted for the first time in an appellate Court on a point not taken before the trial judge." Their Lordships further observed :?- "Their Lordships would have felt difficulty in permitting the respondents to rely upon this ground before them were it not that before the Board the appellant consented to the question being raised on the materials placed before the High Court." In A I R 1946 P C 97, their Lordships made the following observations:- "Where a plea in any form is not taken before the trial Court, there is no trace of it in the pleadings of the party, it is not the subject of an issue, the trial Court does not refer to the plea in its judgment-, nor is any evidence led with regard to it, it is not open to the party to take such a plea for the first time before the Appellate Court:" In A I R (1937) All. 696 the question of limitation under Articles 142 and 144 of the Limitation Act was not allowed to be raised in appeal. The relevant observations are given below :? "In second appeal the Court is not concerned with ascertaining facts, but has to accept facts as found by the lower Appellate Court. So where no plea of limitation is raised in the pleadings in the trial Court and no issue is framed by that Court with regard to question of limitation, and the plea is not also raised in the first appeal and so there are no findings by either of the lower Courts on such question, the plea of limitation cannot be allowed to be raised for the first time in second appeal," The learned counsel for the appellant has relied on Lachmi Sevak Sahu v. Ram Rup Sahu and others (A I R 1944 P C 24) and has urged that the following observations of their Lordships support his contention. "A point of limitation is Prima facie admissible even in a Court of last resort although it has never been taken in the lower Court." But if the facts of this case are considered, then it is abundantly clear that their Lordships refused to consider the question and to remand the matter to the trial Court because it was not a pure question of law, but a mixed question of law and fact. Their Lordships observed at page 26 of the report :?-- "The question whether Bhairon's possession was adverse to the plaintiff is still a question of fact ; and, it would be manifestly unjust if it were held, in the absence of any issue, any cross-examination any inquiry upon the point and without giving the plaintiff an opportunity to meet the allegation, that the possession of Bhairon and of the appellant had been adverse to the plaintiff for twelve years. Their Lordships are not here concerned to forecast the result at which a proper inquiry would arrive, but there are important materials to be considered as tending to show that Bhairon's possession of the office of manager of this endowment was not adverse to the plaintiff." As such, in the circumstances of the present case, it would be most improper on the part of this Court if the appellant is allowed to raise the plea of limitation in argu?ments and eventually to remand it for leading evidence on this question. I, therefore, find no force in the contention of the learned counsel for the appellants, and refuse to allow them to raise the question of limitation in appeal. Considering the matter on merits, it would appear that the learned judge has held that he was not satisfied on the evidence placed before him that the Nawab made a gift of the properties at Mary Road to his wife. In arriving at this conclusion the learned judge considered the evidence of Mrs. Dinbai Anklesaria, Ali Mahomed, Mir Ahmad Shah. Jaganath Tandon and Aziz Mahomed besides documentary evidence. The learned counsel for the appellants has attacked the judgment of the learned judge on the grounds that as he did not disbelieve the evidence of the above mentioned witnesses it should have been held that the deceased Sir Shamas Shah admitted in the presence of some of the witnesses that he had made the gift of Mary Road property to his wife in lieu of maintenance. He has further urged that the learned judge has also not given his reasons for discarding the documentary evidence produced on the record to show the conduct of the deceased and the manner in which the property in dispute was treated from 1929 onwards. It is further urged that although there is no direct evidence when the gift was made, but still there is cogent evidence to establish that the deceased expressed in the presence of several reliable witnesses that the Mary Road property belonged to Lady Shamas Shah, and the respondents having not rebutted this evidence, it should be held that the finding of the learned judge below is wrong and liable to be set aside. The learned counsel has also urged that the trial Judge erred in not considering the evidence of Mrs. Khory examined on commission. My learned brother, Sir Constantine, J. on the Original Side of the Chief Court of Sind allowed this, witness to be examined on commission and ordered her statement to be read in evidence only if she was not fit to appear in Court on the date of hearing. Agha, J. by order dated 11th December 1947, reproduced below. "The defendants have examined Mr. Yar Mahomed Medical Practitioner, who has said that Mrs. Khory can attend the Court. Her evidence taken on commission will not therefore be treated as evidence in the case," excluded this statement from evidence. It has not been shown that this order is not based on sufficient grounds. A perusal of this order clearly shows that the trial judge exercised the discretion vested in him in a proper and judicial manner. The appellate Court in such circumstances will not be justified to interfere with such discretion. We have therefore refused to accept the evidence in appeal, and it will not be treated as part of this record. Under the Muhammadan Law in order to establish a gift there are certain essential elements to be established by the party who alleges the gift. The first is that the donor made a declaration with the intention of making the gift, that the gift was accepted by the donee and that the possession of the property was delivered to the donee. All these necessary elements are lacking in the present case. There is no direct evidence to show when and at what time the gift in question was made by the deceased in favour of Lady Shamas Shah. The written statement on this point is silent : no definite date or year is given about the making of the gift. The other evidence on the record is also conflicting and it would be most dangerous to pick out one sentence from the statement of one witness and another sentence from the statement of another witness and then to infer that the property in dispute was gifted to Lady Shamas Shah. The most important evidence on the record about the alleged gift is of P. W. Dinbai Anklesaria Exh.

7. She stated :- "There is one property on Mary Road. It was bought by the Nawab Sahib and given to his wife as a present. Lady Shamas Shah showed it to me. After that the Nawab Sahib said he has given it to Lady Shamas Shah. This was a few years after the wedding." In cross-examination the witness stated .- "The conversation that I had with the Nawab Sahib about Mary Road property was this. I told him 'the Lady Sahib showed me yesterday the building that you have presented to her. It is very nice.' He said 'did you like it.' I said 'yes, it was very nice'. When I first saw the Mary Road property there was only one bungalow there. Afterwards the Nawab Sahib constructed another bungalow on it." In cross-examination to defendant No. 4 she stated :- "Lady Shamas Shah had taken me to Mary Road property before 1930." In re-examination she stated :- "About Mary Road property Lady Shamas Shah had said to me 'we have built another bungalow there'." From the above statement it is apparent that when the alleged statement was said to have been made by Lady Shamas Shah and Sir Shamas Shah there existed only one bungalow. The learned Judge's observation therefore that her evidence is to the effect that the Nawab gifted this property to his wife when there was only one bungalow on it is absolutely correct and by no stretch of imagination it can be said that this witness has said anything else or has suggested that at the time when she had a talk with Lady Shamas Shah about the presentation of the property in dispute, then the other bungalow was also in existence. The learned counsel for the appellant has said that the statement of this witness should be considered in the light of the fact that she was giving her statement after along time and it would be almost difficult for her to remember precisely whether the gift was made before the construction of the other bungalow or after its construction. But the witness has not stated so. She has made a positive statement and if there is such a lacuna in the evidence then the party relying on such statement must also bear the consequences. The other witness on this question is Mr. Jaganath Tandon, Exh.

8. This witness in his examination about the Mary Road property stated:-- "The Nawab had purchased a property on Mary Road. There was one bungalow there at time of purchase. Mr. Chatterji lived there. Sometime after the purchase, a bigger bungalow was built there. After that the Nawab Sahib had told me that this bigger bungalow belonged to his wife and he wanted that it should be let out on a high rent." In cross-examination, he stated :- "I cannot say exactly how long after the bigger bungalow was built that I had the above conversation with the Nawab." So this witness has only said that the Nawab Sahib told him that this bigger bungalow belonged to his wife. This witness thus has said nothing about the old bungalow at all and then it does not appear in what circumstances the Nawab Sahib said that the bigger bungalow belonged to his wife: whether it was given to her by way of gift or for any other reason. We are therefore left to surmise and conjecture. The learned counsel for the appellant has urged that taking the two statements together i.e. of Mrs. Anklesaria and Mr. Tandon, it is sufficiently established that the deceased Shamas Shah had given the two bungalows to Lady Shamas Shah by way of gift. I am not prepared to accept this argument. Such hotch?potch evidence can never be relied upon for the purpose of establishing that the particular property was gifted to Lady Shamas Shah. Evidence on such questions must be positive, clear, unambiguous and not conflicting. The evidence of these witnesses therefore taken by themselves, does not lead me to the conclusive proof that the gift was made by the deceased to Lady Shamas Shah. The other important witness on this question is the appellant Mir Ahmad Shah. At least he should have been able to give us the exact time and the place and the circumstances in which the gift in question was made to Lady Shamas Shah. He is also very vague in his statement on the question of gift. He has stated :- "The Nawab purchased the Mary Road property in 1927. I produce the sale deed Exh. 13 dated 31st March 1927. The Sanad has been misplaced by C. R. E. Department. At the time of purchase there was only one bungalow on the property. Within 2 years after the purchase the Nawab constructed second bungalow on this property. The Nawab had let out both the bungalows. After the second bungalow was constructed the Nawab made a gift of this property to his wife for her maintenance because she had no issue. The Nawab himself said so to me several times." Now taking this evidence by itself, should we believe this statement or that of Mrs. Anklesaria ? According to him, the property was gifted after the new bungalow had been constructed. On the other hand, according to Mrs. Anklesaria it was gifted before the second bungalow was constructed. With such conflicting evidence, it cannot be safely held that the property in dispute was gifted by the deceased to Lady Shamas Shah. The next witness relied upon by the appellant is P. W. Ali Mahomed Exh.

22. He has stated:- "In 1929 the Nawab told me that the two bungalows on Mary Road belonged to Lady Shamas Shah and asked me to collect rent. I managed that property for about three years. I was collecting rent, paying taxes and getting repairs done. I was keeping accounts. Every six months 1 was sending statements of accounts to Lady Shamas Shah and also paying the balance to her. The statement of accounti Exhs. 14/1, 14/2 are in the handwriting of my clerk and Exhs. 14/3, 1,4/4, 14/5 and 14/6 are in my handwriting. In cross-examination he admitted that his firm sustained heavy loss and was therefore closed. He further stated that Lady Shamas Shah observed purdah. He sent the statement of accounts to her. He did not deliver them personally. He took charge of Mary Road property in the beginning of 1929 or end of 1928. He used to send her monthly bills. He never made any cash payment to the lady. Now this witness has also not made any direct statement about the gift. According to him also the deceased admitted that the property in dispute belonged to Lady Shamas Shah. The statement of this witness has not at all impressed me. This witness was on friendly terms with the appellant and it is not surprising that he made favourable statement in their favour. As will presently appear, the accounts produced by him are also not above suspicion and the evidence of this witness cannot be relied upon in proof of the alleged gift. The learned counsel for the appellants has, however urged that there is nothing shown in the cross-examination that this witness is telling a lie or that the accounts which have been produced by him are false or fabricated. According to the rule of evidence, in order to impeach the credibility of a witness certain questions have to be put to him to show that he should not be relied upon. This is what has exactly been done in this case, and the very fact that he was put a question to the effect that his firm suffered heavy loss and that it was closed, shows that it was suggested to this witness that he was not telling the truth, and he was making this statement because he was in straitened circumstances and was obliged to make a convenient statement. An examination of the accounts produced by this witness discloses that the accounts .ire on ordinary pieces of paper, except Exhs. 14/3 and 14/4. All of them are written iii pencil. There is no explanation why these accounts were sent in pencil. It was suggested that the accounts might hive been written in pencil with a view to take out carbon copies. But there is not trace of any carbon copy having been taken. Such papers and accounts unless otherwise shown, can be manufactured and produced at any time. There are certain other inherent defects in these accounts. An examination of the accounts will disclose that from 1st April 1929 to 31st May 1932 heavy expenses were incurred on the repairs of Mary Road property and McNeil Road property. Most of the income was spent on repairs. It does not appear that at any time any money was paid to Lady Shamas Shah. The last sheet shows that Lady Shama s Shah was indebted to this witness to the extent of Rs. 207-3-9. There is much force in the contention of Mr. Liaquat Ullah Qureshi, counsel for the respondent, that the manner in which these accounts were prepared clearly indicates that this witness was anxious to avoid his liability and that it also belies the statement of this witness that he used to pay the balance to Lady Shamas Shah. There is no doubt that these accounts do not disclose the true state of affairs and cannot be taken to have been maintained in the ordinary course of management. Apart from this, according to the statement of accounts, this witness was managing the property upto 21st May 1952. The appellants have produced certain letters of one Major Khory and receipts marked as Exh. 19, to show that the property in dispute was also managed by Major Khory. Exh. 19 shows that Major Khory received a sum of Rs. 280 from Lady Shamas Shah on 6th of March 1929. There is no allegation that both Ali Muhammad and Major Khory were managing the property at one and the same time. In such circumstances, should we believe the receipt Exh. 19 of Major Khory or the statement of accounts produced by witness Ali Muhammad ? Exh. 18 produced on the record is dated 18 February 1932. This letter shows that Rs. 200 were sent by Lady Shamas Shah to Major Khory towards the repairs done to the 2 big bungalows on Mary Road. This letter further shows that he wanted to find out whether he should carry out repairs to the kitchen which would cost about Rs.10. The letter further shows that Lady Shamas Shah owed Major Khory Rs. 4 for repairs done to the pump at Farhat Manzil last month i.e. in January 1932. Now if we compare this letter with the statement of accounts produced by Ali Muhmmad, parti?cularly Exhs. 14/5 and 14/6, it would show that Ali Muhammad spent between 1st October 1931 and 24th February 1932, a sum of Rs. 935-12-6 and Rs. 1,879 on Mary road old bungalow and new bungalow respectively. Exh. 14/6 further shows that this witness from 1st March 1932 to 31st May 1952, spent Rs. 205-3-5, Rs. 137-6-0 and Rs. 67 on Farhat Manzil bungalow at McNeil Road and the new bungalow on- Mary Road respectively. Now which of these documents should be believed ? Either Ali Muhammad is making a false statement or these documents stated to have been written by Major Khory are false. According to Mrs. Anklesaria and Ali Muhammad, Major Khory was managing the property before and after his management. These facts have further cast a shadow of doubt and, suspicion on these accounts. I have also considered Exhs. 17, 18, 19 and

20. They are stated -to have been written by Major Khory. None of them are addressed to Lady Sahib. They are addressed. to Mir Ahmad Shah or his son Muhammad Bashir. Exh. 19, as already discussed, is a receipt dated 6th March 1929, in favour of Lady Sir Shamas Shah. These documents were produced and proved by Mir Ahmad Shah Major Khory is stated to have died is 1946 and was unable to prove them. No importance can be attached to these documents. The authencity of these documents is challenged. Mir Ahmad Shah has admitted in his statement that "Major Khory and his wife had very good connection with our family" It cannot be denied that such letters and receipt could be procured by the appellant from the deceased. Moreover the contents of these documents also does not disclose the true state of affairs about the property in dispute. Major Khory was not only looking after the property but also recovering their rents. In the words of Mrs. Anklesaria "when 'the Nawab and his wife were out of Karachi, Major Khory was looking after his property including this bungalow ; he was his friend as well as agent. He was collecting their rent etc." In the ordinary course an agent will deduct expenses incurred on repairs etc., from the income of the property. Both these bungalows were yielding about Rs. 2,000 annually, but the contents of these documents show that this agent did not recover any amount on behalf of the owners. In such circumstances these documents are not above suspicion and cannot be relied upon to show that the property after the alleged gift was treated as that of Lady Shamas Shah. The best evidence that could be produced by the appellants in this case would have been the attornment in favour of Lady Shamas Shah by the tenants of the property in dispute or the fact that after the alleged gift, Ali Muhammad realised rent from the tenants in the name of Lady Shamas Shah. This evidence was within the knowledge of the appellants. They could have produced it, but they have failed to do so and in law it would be permissible to presume that if this evidence had been produced, it would have gone against them, and would have shown that the rent of this property was recovered not in the name of Lady Shamas Shah but in the name .of Sir Shamas Shah. Conse?quently the evidence of Ali Muhammad and the documents alleged to have been written by Major Khory are of no material assistance in arriving at the conclusion that the property in dispute was treated as that of Lady Shamas Shah after the alleged gift. The other evidence relied upon by the appellant about the gift is the statement by Sheikh Muhammad Aziz. This witness was examined on commission and has made different statements in examination-in-chief, in cross-examination and in re-examination, and it will be interesting to note that the statement of this witness in re-examination is more helpful to the appellant than that made in examination-in?-chief. In fact, I have not been able to understand how the counsel for the respondents in the trial Court allowed such questions to be put in re-examination. In any case, this particular witness has also not made any positive statement of direct statement about the making of the gift in question. According to him, Sir Shamas Shah stated in his presence, presumably to his father, that he had gifted his property at Karachi to his wife Lady Shamas Shah. Now what properties were gifted ? The following question was put to him in examination?-in-chief :- "Q.-Did you know if Nawab Sir Shamas Shah had given any properties by way of dower or gift to his wife ? A.-Yes., bungalow situated in Karachi, Farhat Manzil, being one of them". In cross-examination, he reiterated that the property gifted was "bungalow at Karachi so far I know, as stated above. But I do not know the date". His knowledge was only based on the statement of late Sir Shamas Shah. In re-examination the following questions were put and answered by him :- "Q. 2.-Did Nawab Sir Shamas Shah write or speak to you about his marriage after it had taken place ? A.-Yes. The late Sir Shams?????? Shah stated that he had given Farhat Manzil in dower and subsequently some other properties at Karachi. Q. 6.-What property was given by Nawab Sir Shamas Shah as dower and what properties as gift to his wife ? A.-Farhat Manzil as dower and the?????? other bungalows owned by Sir Shamas Shah at Karachi as gift as stated to me by Sir Shamas Shah". ??????????? This witness made positive statement about Farhat Manzil. As regards other property, it is vague and evasive. It will be pertinent to note that this witness did not give the description of the other property at Karachi. His statement is not that of a straight-forward witness. He is a Barrister-at-law and was expected to make a coherent, consis?tent and clear statement. The statement of this witness is full of confusion, and no reliance can be placed on it. The learned Judge below was justified in discarding this statement, and there is no reason to differ. In fact, the statement of this witness iii re-examination is not admissible in evidence. The questions put to this witness cannot be said to have arisen in re-examination. According to section 138, Evidence Act .- "The re-examination shall be directed to the explanation of matters referred to in cross-examination, and if a new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross?examine upon that matter". This witness was examined on commission by interro?gatories. The record does not disclose that any permission was obtained from the trial Court to put the said questions in re-examination. In the absence of such permission, I will, be justified in excluding the answers to these questions from the statement of the witness. In Lim Yam Hong & Co. v. Lam Choon & Co. (A I R 1928 P C 127) their ?Lordships rejected certain statements as hear-say, although no objection was taken in the trial as to their admissibility. Their Lordships remarked :- "The failure of an advocate to object to the admission of evidence cannot so alter the character of testimony as to convert into corroborative evidence that which the law regards as merely fit for rejection as hear-say". If statements made in Court can bear such scrutiny then statements recorded on commission through interro?gatories are liable to be subjected to much more careful scrutiny and examination. On the other hand there are two very important documents proved on the record by Mir Ahmed Shah : they are Exhs. 15 and

16. Exh. 15 is stated to be will of the deceased in which he had written from time to time the details of the property acquired by him during his lifetime and the manner in which he had disposed them of. This relates both to movable and immovable properties belonging to the deceased. I have examined these documents and found that Exh. 15 was written at one stretch from item No. 1 to item No.

12. From time to time the deceased made further entries to show the manner in which he was dealing with his movable and immovable property. This document shows that the property situated on McNeil Road known as Farhat Manzil was gifted to his wife in lieu of dower. There is an entry to this effect. This document further shows that the deceased advanced from time to time various amounts as loans to the defendant-parties including his father-in-law and mother-in-law. The loans recovered by him have been scored off and cancelled. On 4th July 1931, gold and cash totalling Rs. 6,000 were paid to his wife on behalf of her mother and this fact is noted in the margin of the item of loan advanced to them. Thus entries in this document were made right upto July 1931. If the deceased had made any gift of the property in dispute then in the ordinary course of nature and circumstances, this fact would have found its way in this particular document but there is no trace of it. The entries further show both movable and immovable property acquired from time to time by the deceased. The contention of the learned counsel for the appellant throughout has been that the deceased used to love his wife very much. He wanted to provide property for her maintenance, and for this reason the property in dispute was given to her. If this was a fact, and there is no reason to disbelieve it, then the deceased would have been the first person to mention the gift made with regard to the property in dispute to his wife in lieu of maintenance. Exh. 15 therefore is a very important document which shows that the deceased at no time intended to gift the property in dispute to Lady Shamas Shah. This is a very strong piece of evidence against the appellants in respect of the alleged gift. Exh. 16 is another document and that shows that the deceased Sir Shamas Shah used to receive accounts of property from Ali Muhammad. This clearly shows that Ali Muhammad was managing the property and sending accounts to Sir Shamas Shah. The accounts produced by Ali Muhammad are further falsified by this writing. It was urged by the learned counsel for the appellants that this proves that Ali Muhammad was managing the property and therefore his statement that the property belonged to Lady Shamas Shah and accounts were sent to her should be believed. This argument is fallacious. The chit does not show that the accounts produced by Ali Muhammad are the same that are referred to in this chit. The writing is in the hand of the deceased and the accounts referred to must be presumed to have been sent to him. Other important evidence has also not been produced by the appellant to establish the factum of the gift. For instance, Ali Muhammad although admitted that he was maintaining proper accounts of the rent received from the property in dispute, was not asked to produce his account books. It was not shown that these account books were not in existence and could not be produced. The other evidence on the record and the admission made by Mir Ahmad Shah further shows that the property right up to the time of the death of the deceased Sir Shamas Shah stood in his name, that taxes were paid by his agents to the Municipal Corporation and that the property was managed by the agent of the deceased Sir Shamas Shah. Mir Ahmad Shah in his statement stated that the name of Lady Shamas Shah was not mutated in the Municipal record as the Nawab did not like his wife's name to appear in public records. This excuse cannot be accepted because admittedly the name of Lady Shamas Shah was given on the property purchased at McNeil Road. It was known as Farhat Manzil. Certainly if the Nawab was so anxious that the name of his wife should not be known to the public, then he would not have allowed her name to be used on the above-mentioned property. This witness has further admitted as stated above, that the two bungalows were let out by the Nawab and Municipal, taxes were paid by the Nawab's agents. It is also admitted that the second bungalow was constructed by the Nawab Sahib. In fact, in Exh. 21, an application made to the City Survey Officer by Mir Ahmed Shah, it is stated "the reason that the properties were not transferred to the name of Lady Shamas Shah is that she was a purdanashin lady and all the business was carried out by her husband Nawab Sir Shamas Shah", further establishes that the property was throughout managed by or through Sir Shamas Shah. These are important admissions to negative the alleged gift and the allegation that the late Nawab treated this property as that of Lady Sir Shamas Shah. The learned counsel for the appellants has, however urged that Civil matters are always to be decided on pre?ponderance of evidence and the probability proved with regard to a particular fact. But this is always with due regard to the burden of proof and the nature of the evidence produced. In a matter which relates to a gift made by a Muhammadan, the onus of establishing the gift is on the h party who relies on it, and that must be proved by cogent and convincing evidence. In Ranee Khujoorunissa v. Mst. Roshan Jehan (III I A 291) their Lordships of the Privy Council, observed as follows :- "The policy of Muhammadan Law appears to be to prevent a testator interfering by will with the course of devolution according to law among the heirs, but it appears that a holder of property may, to a certain extent defeat the policy of law by giving in his life-time the whole or any part of his property to one of his sons, provided he complies with certain forms. It is incumbent however, upon those who seek to set up a proceeding of this sort to show very clearly that the forms of the Muhammadan Law, whereby its policy is defeated, have been complied with". In Choudhri Mehdi Hasan v. Muhammad Hasan (33 I A 68) the gift in question was endorsed by a registered document, and there was evidence that on many occasions subsequently the plaintiff spoke of the property as having been given to the defendant, but after considering all the circumstances their Lordships observed as follows :- "Part of the property described in the deed and claimed by the defendant is a house at Cohilgawan which had been built by and belonged to the plaintiff, in which he and his wife resided before and at the time of the execution of the deed. The plaintiff did not, as contemplated, go to Mecca soon after that time, being prevented at first by an accident and afterwards by the illness of himself and his wife. When the defendant married, the plaintiff invited him and his wife to come and live with him at the house in question and they did so, and were maintained by him there until 1894, when the plaintiff and his wife made the long contemplated pilgrimage to Mecca on which they were absent about six months. During their absence the defendent and his wife continued to live in the house, but on their return the plaintiff and his wife went back to their home and have continued to reside there ever since. The defendant also remained there for a short time till his wife died ; after her death the defendant married again, and differences having arisen between him and the plaintiff the defendant went away and lived in Nidura, while the plaintiff remained in the house as before. Each party says he was in possession of that house ; but upon the above facts which are not in dispute, their Lordships have no difficulty in coming to the conclusion that this house was all along in the possession of the plaintiff". and ultimately came to the conclusion that the deed was not followed by delivery of possession, but was a fictitious and benami deed and was invalid and void. In Sadik Hussain Khan v. Hashim Ali Khan (XLIII I A 212) their Lordships of the Privy Council observed :- "The Muhammadan Law in their view, therefore applies to this deed ; and the gift made by it being voluntary, is void under that law, unless it was accompanied by a delivery of such possession as the subject of the gift is susceptible of". In this case there was evidence that rent with regard to one of the disputed properties was received by the trustees but their Lordships did not attach any importance to it and made the following observation "As regards the receipt of rent or income of the property mortgaged, it must be borne in mind that Fatima Begum would have been entitled to an eight share of it and her sons to their shares of it, even if the trust deed had never existed; and that she, as their guardian, would have been entitled to be paid their share as well as her own, while under the trust deed the trustees or she herself with their permission, would have been entitled to receive the entire income. The receipt therefore by her of a portion of the income of any of the properties comprised either in the trust deed or in the mortgage might be equally con?sistent with her title under the deed or independent of it and therefore no proof at all of possession under it. There are letters from the agents of the Bank of Bengal at Lucknow to the trustees acknowledging the receipt from the Branch of their bank at Calcutta of different sums to be placed to their credit ranging from 21st August 1901, to July 1902. It is not shown precisely what was the true nature of these lodgments in the bank at Calcutta but from their dates and amounts and the place of lodgment the inference probably would be that they were the rents of the only property belonging to the deceased Nawab situated in Calcutta. The evidence of Mehdi Ali Khan on this point is very unsatisfactory, but is more consistent with the lady's taking against the trust deed than under it. There is no satisfactory evidence, therefore, in their Lordships' opinion that the trustees ever entered by virtue of the trust deed into receipt of the rent or income of the property comprised in the mortgage sued upon, and con?sequently there is no satisfactory proof that the possession of this portion of the property the subject of the gift was ever delivered by the settlor to the trustees. Even if the proof of the receipt of the rent of the Kothi 13, Russell Street Calcutta, were so satisfactory as to support the conclusion that possession of it had been delivered to the trustees at the date of the trust deed, or indeed at any time during the lifetime of the settlor, which in their Lordships' view, it is not the receipt of the rent of these premises, differing altogether as they do in nature and character from the property mortgaged, separated by many miles from these jahgir villages, and not forming with them one concrete whole, would furnish no proof whatever of the delivery by the settlor to the trustees of the shares in the villages mentioned in the mortgage". In Musa Miya v. Kaaar Bux (A I R 1928 P C 108) an oral gift in favour of the grand sons was alleged. No mutation of the names and no deed was executed. Their Lordships approved the following as the correct statement of law on the question of gift in the material clauses of Chapter V of Macnaghten's Principles and Precedents of Muhammadan Law, published in 1825 :- "A gift cannot be implied. It must be express and unequivocal, and the intention of the donor must be demonstrated by his entire relinquishment of the thing given, and the gift is null and void where he continues to exercise any act of ownership over it". And their Lordships held the alleged gift as void as it was not complete according to Muhammadan Law. The review of the case-law on the subject makes it abundantly clear that under the Muhammadan Law parties claiming under the gift should show clearly that all the forms, necessary for a valid gift have been complied with, and that the gift was valid. For a valid gift, it is necessary to show that possession of the property was actually given. A careful examination of evidence led by the appellant has neither satisfied me that Sir Shamas Shah made a gift in favour of Lady Shamas Shah nor that the possession of the property was actually given to Lady Shamas Shah. The observations of the learned judge on this aspect of the case at page 76 are as under :- "This is all the evidence in the case. From this, it will be seen that according to Mrs. Anklesaria the property was gifted to the wife of the Nawab when there was only one bungalow on it, while the others have said that the gift was made after the second bungalow was constructed. There is no definite evidence about the time, place and date on which the gift of this property was made by the Nawab to his wife. The evidence is very vague and indefinite. The Nawab had no issue and therefore even if he said to some other witness that the property belonged to his wife, it will not be inconsistent with the position that no gift had been made to the wife of this property and that the Nawab only out of respect and love for his wife was mentioning it as the property of his wife. Exh. 15, which has been referred to above, in which the Nawab wrote down all the property that he had, makes a mention of the property having been bought by the Nawab, but there is no mention in it whatsoever about this property having been made over as a gift to his wife. The property was purchased in 1927 and Exh. 15 contains entries upto 1931. If the Nawab made a gift of the property to his wife in 1929, there is no reason why he would not have mentioned this fact in Exh. 15, which he was bringing up to-date. I am not satisfied on the evidence placed before me that Nawab made a gift of this property to his wife. The plaintiffs and defendant No. 4 who are the nephews of the Nawab would therefore, be entitled to this property". The learned counsel for the appellant has failed to satisfy o me that the finding of the learned judge below is wrong or is not based on correct appreciation of facts. The appellants have miserably failed to discharge the onus of establishing the gift. They have produced very flimsy and vague evidence on this question. The evidence on the question of possession or treatment of the property after the alleged gift is also full of contradictions and material discrepancies. It is not at all reliable and does not carry conviction. As against that there is important documentary evidence to indicate that Sir Shamas Shah never intended to relinquish or divest himself of the ownership of the property. The property till the last remained in his name in the property and Municipal registers. The property was let out to tenants by his agent, taxes were paid in his name and rent was recovered in his name. In these circumstances, I am clearly of the opinion that the gift is not proved. In any case, it remained invalid, and is thus invalid and ineffective under the Muhammadan Law. I would therefore uphold the judgment of the trial Court on this point. Mr. Riaz Ahmad, learned counsel for the appellant, has however, urged that the decree for mesne profits passed by the trial judge is not in accordance with Order XX, :ule 12 Civil f'. C. It is contended that the learned judge has awarded mesne profits for nine years commencing from 31st May 1935, although under Article 109 Limitation Act only three years' profits can be awarded. This argument is well-founded. The learned counsel :or the respondents has also conceded it. Accordingly the decree of the trial judge is modified and the respondents will only be entitled to mesne profits for three years before the sling of the suit. For the reasons given above, the appeal is allowed on the question of mesne profits ; otherwise it is dismissed with costs. The appellants to pay 3/4 of costs of the respondents. in one set of this appeal. A. H. ?????????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.