P L D 1957 (W (PLP)

A. R. CHANGEZ, J.‑

This second appeal arises out of a suit instituted by the plaintiff‑appellant on the 18th of July 1952 for a declaration to the effect that the house specified in the plaint was owned and possessed by the plaintiff and that the deed of gift said to have been executed by the plaintiff on the 25th of May 1943 in favour of the defendant in respect of half a share in the house was null and void, and for a perpetual injunction restraining the defendant from disturbing her possession. It was alleged in the plaint that eight or nine years earlier, the plaintiff used to visit the shrine of Baba Jangu Shah where she got acquainted with the defendant who by misrepresenting that he would get her a passport for Haj pilgrimage obtained her thumb impressions on a document and thereafter she was taken to Kharian before an officer, but her statement was not recorded there. Some time before the institution of the suit, she learnt that the defendant had fraudulently converted that document into a deed of gift. She then obtained a copy of that deed and brought this suit. The validity of the gift was challenged inter alia on the grounds that her thumb impressions had been fraudulently obtained on the document and that she was an illiterate parda nashin old lady and the defendant had exercised undue influence over her. She further alleged that the defendant was not related to her and had not rendered any service to her and the gift was without consideration and unconscionable and that the possession of the house had not been delivered to the defendant. The defendant denied the allegations made by the plaintiff and pleaded that the plaintiff had made the gift of the house and the mortgagee rights of a piece of land, voluntarily and of her own free will in lieu of services rendered by the defendant and had got the deed of gift registered and had actually delivered possession of the subject of the gift to him. He also pleaded that the suit was time barred and she was estopped from bringing the suit in consequence of her conduct and silence for such a long time. On the pleadings of the parties, the following issues were framed :‑ (1) Whether the gift in suit was unlawful and void for the reasons stated in para. 4 of the plaint and whether these reasons exist ? (2) Whether the plaintiff's suit is within time ? (3) Whether the plaintiff is estopped by her word, con duct and silence from bringing this suit ? (4) Relief. The trial Court decided all the issues in favour of the plaintiff and decreed the suit. While dealing with issue No. 1, it was held that the thumb‑impressions of the plaintiff were not obtained by the defendant by means of fraud or misrepre sentation and that no undue influence had been exercised by the defendant over her. It was also held that the plaintiff had delivered possession of half a share in the house to the defendant. The trial Court, however, held that the consi deration for the gift was not proved and relying on section 25 of the Contract Act it declared the gift in question to be void for want of consideration. On appeal by the defendant, the learned Additional District Judge reversed the decree of the trial Court and dismissed the plaintiff's suit with costs throughout. He held that section 25 of the Contract Act was inapplicable to pure gifts as was clear from Explanation I attached to this section. The plaintiff has come up in second appeal before this Court. It appears that at the time of the admission of this appeal it was contended by the learned counsel for the appellant before the admitting judge that the gift in question was a hiba‑bil‑iwaz and as such was revocable and it was on that score that this appeal was admitted. Before me, however, the plea of revocation was not taken up at all, but it was argued that the transaction being a hiba‑bil‑iwaz it was tantamount to a sale and as such section 25 of the Contract Act was fully applicable. It was, therefore, contended that as the gift was without consideration, as found by the trial Court, it was wholly void. Learned counsel for the respondent pointed out that the plea that the gift was a hiba‑bil‑iwaz was never taken in the plaint, nor was it taken at any time during the course of the trial, or before the Additional District judge, and it was only in second appeal that this plea was advanced for the first time and, therefore, he urged that the appellant should not be allowed to raise this point at this late stage. As an important question of law was raised upon the construction and interpretation of the deed of gift, I consi dered it expedient in the interest of justice to permit the learned counsel for the appellant to argue the point. His main contention was that the recital in the deed of gift to the effect that the gift had been made in lieu of services rendered by the defendant, brings it within the category of hiba‑bil‑iwaz. Para. 168 of Mulla's Principles of Muhammadan Law, 1950 Edition, lays down that :‑‑ "A hiba‑bil‑iwaz, as distinguished from a hiba or simple gift, is a gift for a consideration. It is in reality a sale, and has all the incidents of a contract of sale . . . . . . Two condi tions, however, must concur to make the transaction valid, namely, (1) actual payment of consideration (iwaz) on the part of the donee, and (2) a bona fade intention on the part of the donor to divest himself in praesenti of the property and to confer it upon the donee. The adequacy of consi deration is not material; but whatever its amount, it must be actually and bona fide paid. Such a transaction is called the hiba‑bil‑iwaz of India as distinguished from `true' hiba‑bil‑iwaz dealt with in the notes below." For the purposes of the decision of this appeal it is not necessary to enter into a detailed discussion of true hiba‑bil iwaz and the so‑called hiba‑bil‑iwaz of Indo‑Pakistan sub continent. Suffice it to say that in true hiba‑bil‑iwaz there are two distinct and independent acts: Firstly, the original gift, and secondly, the reciprocal gift by the first donee in iwaz or exchange. This reciprocal gift by the first donee is called true hiba‑bil‑iwaz. But in the so‑called hiba‑bil‑iwaz of Indo Pakistan sub‑continent there is only one act, the iwaz or exchange being involved in the contract of gift as its direct consideration, and this in reality is not a proper hiba‑bil‑iwaz, but is a sale or exchange, as the case may be, and has all the incidents of these contracts. The principal question which arises for determination is whether services of the type narrated in the deed of gift alleged to have been rendered by the donee to the donor can be deemed as consideration for the gift, to bring it within the category of hiba‑bil‑iwaz. This point came up for decision as long ago as 1888 before a Division Bench of the Allahabad High Court in the case of Rahim Bakhsh v. Muhammad Hasan (ILR11All.1), where Mahmood J., with whom Straight J. expressed his entire agreement, after explaining at length what hiba‑bil‑iwaz is, observed as follows :‑ "Now, such being the rule of the Muhammadan Law the transaction of the 4th May 1883, cannot be regarded as a hiba‑bil‑iwaz, or a gift for an exchange, unless it can be shown that the consideration for which that transaction took place was a previous gift passing from the plaintiff, the donee of the deed of the 4th May 1883, to Fateh Ali, the donor. In other words, does the consideration mentioned in the deed of the 4th May 1883, represent any gift made by the plaintiff to Fateh Ali on a former occasion ? The answer to this question must be in the negative, because all the deed mentions as the consideration of the gift is natural love and affection,' which induced the plaintiff, donee, to render services to the donor, to maintain him and treat him `with kindness and indulgence,' and to show him 'all sorts of favours'. This being so, the next step in the reasoning is whether such natural love and affection, services and favours, could be made the subject of gift by the plaintiff to Fateh Ali, the donor of the deed of the 4th May 1883. The law upon the subject is perfectly clear, for the very nature of gift under the Muhammadan Law requires that the subject thereof must be a right of property in something specific without an exchange.‑(Bailie's Digest, p. 515). The Hedaya defines gift in the same sense Hiba, in its literal sense, signifies the donation of a thing from which the donee may derive a benefi : in the language of the law, it means a transfer of property, made immediately, and with out any exchange. (Hamilton's Hedaya, Vol. III, p. 673, Grady's Ed., p. 482). It is therefore impossible to hold that the natural affection, kindness, services and favours mention ed in the deed of the 4th May 1883, can be regarded as a hiba‑bil‑iwaz, or a gift for an exchange, as understood in the Muhammadan Law." The learned Judge then referred to the distinction between true hiba‑bil‑iwaz and the hiba‑bil‑iwaz of India as explained by Mr. Baillie at page 121 of his Digest and remarked :‑ "Even in the light of this explanation, I cannot hold that the learned Subordinate Judge, was right in holding that the transaction evidenced by the deed of the 4th May 1883, was a hiba‑bil‑iwaz amounting to sale, there being no 'exchange of property for property' in the sense of the Muhammadan Law of sale, nor a transfer of ownership in exchange for a price paid or promised or part, paid and part promised,' within the meaning of section 54 of the Transfer of Property Act (IV of 1862)." It, the cited case the donor had gifted the property by a deed of gift in the following terms :‑ "Sheikh Muhammad Hasan, a near relative of mine, has all along, with cordial affection and love, rendered service to me, maintained and treated me with kindness and indulgence, and shown all sorts of favours to me. Besides the above the executant cannot attend even to the necessary management of the said share. Therefore for this reason, as also in consideration of the natural love and affection which Muhammad Hasan bears, as well as for all the past favours and indulgence shown by him, I, the executant, have with my free will and consent, and in sound state of body and mind, without coercion or restraint, transferred and given away to Muhammad Hasan my entire share in the estate of Muhammad Shakurullah specified below, which devolves upon me as a residuary heir, together with all the zamindari rights appertaining thereto." In Amir Khan v. Hakumat Bibi and others (A I R 1926 Oudh 474) the point which was raised before the High Court was that the deed of gift executed in favour of the plaintiff being a hiba‑bil‑iwaz was valid even without delivery of possession as it partook of the nature of a transaction by way of sale. Dealing with this question the learned judge observed :‑ "Regarding the first contention it was argued that the transaction evidenced by the deed of the 25th November 1921 partook of the nature of a sale transaction. I am not prepared to accept that view. I am aware that there are cases where it has been held that where a gift is made by a Muhammadan in lieu of something which has a monetary value the transaction may be considered by way of sale. There are also certain cases which lay down the proposition that services of a professional character rendered by the donee to the donor may be considered as a con sideration of monetary value. In the deed in suit however there is no money consideration nor can the services rendered by the plaintiff to defendant No. 1 be reckoned as having a monetary value. The deed in suit cannot there fore be considered to bear the character of sale. The deed must be interpreted as a deed of gift". In an earlier decision of the Oudh Judicial Commissioner's Court reported as Imdad Ali v. Ahmad Ali (A I R 1925 Oudh 518), Dalal, J. C., while dealing with a similar question accepted the dictum laid down by Mahmood J. and observed :J‑-- "In Rahim Bakhsh v. Muhammad Hasan the great Muhammadan Jurist, Mr. Justice Mahmud, held that the gift, which is made in consideration only of natural love and affection or of services or of favour rendered as in the case before us, does not fall under the category of hiba‑bil‑iwaz. I am not prepared to disagree with the opinion of such a high authority". In that case the donee was the son‑in‑law and the services narrated in the deed of gift consisted of the donee looking after the donor's affair with considerable honesty and single ness of purpose. It was held by Dalal, J. C., that the gift in question was not a hiba‑bil‑iwaz. But Wazir Hasan, A. J. C., differed from 'the view of Mahmood J. and expressed a doubt whether the British Courts of Justice were bound to recognise that narrow conception of property which was entertained by the ancient Muhammadan Jurists. He held that even an obligation created by past services was an obligation which carried money value. After developing this point a little, he, however, observed at the end :‑ "For the purpose of my judgment it may be assumed on the authority of the decision of Mahmood J. that the transaction of the gift with which we are concerned in the present case is not a hiba‑bil‑iwaz". This clearly shows that even Wazir Hasan, A. J. C was not quite certain of the view which he took in the case. After a careful consideration of the aforesaid rulings, I have arrived at the conclusion that if the services rendered by the donee have a monetary value and in exchange of such services a gift is made, then the transaction is hiba‑bil‑iwaz, g because in that case it is an exchange of property for property.! By way of illustration, take the case of a doctor who renders services to the donor during the period of his illness, but instead of getting his fees, he exchanges his fees with the property which the donor gives to him. The latter transaction is a hiba‑bil‑iwaz. Similarly, take the case of a servant who serves his employer and in lieu of his pay for the period of his service, accepts the property which the donor offers to him. This also assumes the form of a hiba‑bil‑iwaz. In both these illustrations there are two distinct and independent acts. 'I he original gift is made by the doctor or the servant, of the services rendered which have a monetary value, and in iwaz or exchange of it the donee makes a reciprocal gift of his property. In such cases, the services are rendered for con sideration and have an equivalent in money value and, therefore, can be made the subject of exchange of property for property. These transactions fall within the category of hiba‑bil‑iwaz and are tantamount to a sale or exchange as the case may be. But in cases where the services are rendered by the donee without consideration, and without expecting any return, and cannot be reckoned as having a monetary value, then the gift of property in lieu of such services cannot be deemed to be a hiba‑bil‑iwaz, but it will be an ordinary gift as understood under the Muhammadan Law. For example, a son renders services to his father on account of natural love and affection or a disciple serves his master out of regard and respect for him, and in lieu of such services the father makes a gift of his property to his son or the master to his disciple the transaction would not amount to hiba‑bil‑iwaz, but would be an ordinary gift. In these cases, the father and the master are under no legal obligation to make a return for the services rendered by the son or the disciple. Likewise, if no services are rendered whatsoever and the gift is made without any consideration, then also the gift would be a pure gift and not a hiba‑bil‑iwaz. Learned counsel for the appellant, however, placed reliance on Gopal Das v. Sakina Bibi (A I R 1936 Lah. 307). In that case the gift had been made by the husband to his wife in lieu of dower and the question which came up for decision was whether such a gift was inadmissible in evidence for want of registra tion, and it was held that such a hiba‑bil‑iwaz being tantamount to a sale required registration if the value of the property transferred exceeded Rs.

100. This ruling, as is obvious, is of no assistance in determining the question whether .one gift made in lieu of services, as are under consideration in the present case, is a hiba‑bil‑iwaz or not. It does not deal with this question at all. The rulings which have a direct bearing on the point involved, have already been cited above. Mahmood J. whose legal acumen and keen intellect had earned him the everlasting reputation of being one of the most eminent Judges has given a lucid and authoritative exposition of law, on the subject, in Rahim Bakhsh v. Muhammad Hasan, and in the light of the principle laid down ill that ruling, I am of the view that the deed of gift in the present case does not fall within the category of a hiba‑bil‑iwaz. The recital in the deed of gift in respect of the services rendered by the donee to the donor is only a motive for making the gift and is not a consideration for the gift, and it does not alter the character of the gift unless such services were in fact rendered for consideration and in expectation of a return and could be reckoned as having a monetary value. In the present case, it is quite clear that the plaintiff did not allege either in the plaint or in her statement made before the Court that she had made the gift in question in lieu of any services rendered by the donee to her. The trial Court has further found that there was no proof on the record that the donee had rendered any services to the plaintiff. Obviously the gift in question was not made for any consideration, nor was it made in lieu of any services rendered by the donee to the donor. For the aforesaid reasons, I hold that the gift in question was a pure gift and was not a hiba‑bil‑iwaz and, therefore, Explanation 1 to section 25 of the Contract Act is fully applicable and the gift is perfectly valid even if there was no consideration for it. For such a gift to be valid the three essential conditions are (1) clear and unambiguous declaration of the intention of the donor to give immediately a property to the donee, (2) acceptance of the gift by the donee, and (3) delivery of possession of the subject of gift to the donee, and if these three conditions are fulfilled, the gift is complete and valid. In the alternative, learned counsel for the appellant argued that if it was a pure gift then also the gift was void inasmuch as the possession of the property had not been delivered to the defendant. The trial Court, after dealing exhaustively with the evidence on this point, gave a verdict against the appellant and it appears that the plea of non delivery of possession was not raised by the appellant before the Additional District Judge. Although the learned counsel for the appellant did not read the evidence before me nor did he specifically point out any evidence on which he wished to rely on this point, yet I have carefully gone through the evidence and I see no reason to differ from the finding of the trial Court. Besides the recital in the registered deed itself, that possession had been delivered to the defendant, there is other documentary evidence on the record in support of this plea. Soon after the execution of the deed of gift, it transpires from the statement of the defendant that he took up his residence in the house in dispute and remained there for about six months. The School Leaving Certificate, Exh. D, 3, proves that during that period he was a student of the Islamia High School, Lalamusa, where the house in dispute is situated. The rent deed Exh. D. 6, dated the 17th of November 1943, shows that the defendant had let out this house to one Ramzan who is now dead. The scribe and the attesting witnesses of the rent deed could not be produced as they had migrated to India. The copy of the mutation, Exh. D. 2, further shows that the defendant had taken possession of the land of which the mortgagee rights had also been gifted to the defendant. This document clearly shows that the plaintiff was present before the Tahsildar at the time of the mutation and had admitted the gift as well as the transfer of possession. Under the circumstances, there is no reason to doubt the testimony of the defendant himself. In the face of this solid evidence, documentary as well as oral, no reliance can be placed on the oral testimony of witnesses produced by the plaintiff. In my opinion, the plaintiff has failed to establish that possession of the house had not been delivered to the defendant at the time of the making of the gift. It was also contended that the plaintiff was in possession of the house at the time of the institution of the suit which suggests that she had all along been in exclusive possession of the house. It is, true that it was found by the trial Court that she was in possession of the house at the time of the institu tion of the suit. On an objection having been raised by the defendant that the suit for declaration alone was incompetent, a preliminary issue was framed as regards the possession of the house and was decided in favour of the plaintiff. But in my opinion this does not make any difference, because the question for determination is whether possession of the house had been delivered to the defendant at the time of the making of the gift, and not whether the defendant was in possession of the house at the time‑of the institution of the suit. The fact cannot be lost sight of that this suit was instituted about nine years after the making of the gift, and as no issue had been framed on the point, it is not known under what cir cumstances and when the plaintiff got exclusive possession of the whole house. For the foregoing reasons I see no force in this appeal which is hereby dismissed. As regards costs, it appears that the plaintiff‑appellant, who is an old lady, has not sufficient means even for her own maintenance. She had made a gift of the property in favour of the defendant‑respondent with out any consideration. The subject matter of the gift was valued at Rs. 2,000 in the year 1943. By now its value must have been considerably increased, Under the circumstances, I think it is only fair that the parties should bear their own costs throughout and I order it accordingly. A. H. Appeal dismissed: