P L D 1958 (W (PLP)

B. Z. KAIKAUS, J.‑--One Mehr Din, who owned 252 kanals and 12 marlas of land in village Chakori Bhilowal in the Gujrat District, died some time before the passing of the Muslim Personal Law (Shariat) Application Act, leaving behind a widow, Mst. Jaina, a daughter, Mst. Allah Rakhi, and some collaterals. His property was mutated in 'the name of his widow who subsequently made a gift of it to her daughter. Fazal Ahmad, one of the collaterals, filed a suit for a declara tion that the gift would not affect his reversionary rights a This suit was decreed. Mst. Jaina then died. The Muslim Personal Law (Shariat) Application Act had by that time come into force. Nut Din, one of the collaterals, who was entitled to succeed to 3/8th share of the land of Mehr Din, gifted one- half of his share of the land, that is, 3/16th share of the land of Mehr Din, to Fazal Ahmad, who had filed the suit for declaration. The suit out of which the present appeal arises was filed by Fazal Ahmad to recover 3/16th share of the land of Mehr Din on the plea that this share had been transferred to him by Nut Din. Defendants to this suit are Mst. Allah Rakhi who had continued to be in possession since the gift was made in her favour, and Nur Din, the donor.

2. Nur Din admitted the claim of the plaintiff and the suit was contested by Mst. Allah Rakhi alone. She denied that there was any valid gift in favour of the plaintiff and alleged that Nut Din had made a gift of the whole of his share in her favour, With respect to the gift in favour of the plaintiff, she contended that it was not accompanied by delivery of possession. The trial Court found that the gift in favour of the plaintiff was a hiba‑bil‑iwaz and, therefore, delivery of possession was not necessary. It was of the opinion also that the question of the validity of the gift was one between the donor and the donee. Having found that the allegation of the defendant that there was a gift in her favour by Nur Din was without any foundation, it decreed the suit. Can appeal, the learned District judge differed with the trial. Court on the question as to whether the gift in favour of the plaintiff was a hiba‑bil‑iwaz. He held it to be a simple gift which was invalid for want of delivery of possession. He did not deal with the other ground relied upon by the trial Court, namely, that the question of delivery of possession was one between the donor and the donee, and accepting the appeal dismissed the suit with costs. This is an appeal by the plaintiff.

3. Only the two grounds which formed the basis of the trial Court's decree require to be determined in this appeal. As regards the first point, it appears to me that both the Courts below have gone wrong, the first because it regarded delivery of possession unnecessary in the case of a hiba‑bil‑iwaz and the second because it stated incorrectly the elements of a hiba‑bil‑iwaz.

4. A hiba‑bil‑iwaz of Muslim Law simply consists of two simple gifts, the only additional factor being that the first gift actually forms a consideration for the second. In a hiba-bil‑iwaz, the second gift is not, at the time when the first gift is made, in contemplation at all that is, there is no condition attached to the first gift that the second gift is to be made. The second donor is at liberty to make or not to make a gift. The first gift has, therefore, to be completed by delivery of possession. The second gift too is an ordinary simple gift with only this distinguishing factor that the first gift furnishes the reason for it. In fact, there was no need to place the hiba‑bil‑iwaz in a separate category at all, were it not for the fact that the revocability of a gift is affected once the donee has also made a gift in consideration for it, and the first donor has accepted the second gift. Having accepted the second gift e is debarred from repudiating his own gift. When he is debarred the donor of the second gift is for a similar reason also debarred.

5. This is the true conception of hiba‑bil‑iwaz in Muslim Law. No doubt a great deal of confusion exists in judgments with respect to the definition of hiba‑bil‑iwaz, a confusion which is traceable to Baillie. I reproduce below his description f hiba‑bil‑iwaz: (Page 122 of Ballie's Digest):‑ "Hiba‑bil‑Iwaz means, literally, gift for an exchange; and it is of two kinds, according as the Iwaz, or exchange, is, or is not, stipulated for at the time of the gift. In both kinds there are two distinct acts; first, the original gift, and second, the Iwaz, of exchange. But in the Hiba-bil‑Iwaz of India, there is only one act; the Iwaz, or exchange, being involved in the contract of gift as its direct consideration, 'And all are agreed that if a person should say, 'I have given this to thee for so much,' it would be a sale' for the defini tion of sale is an exchange of property for: property, and the exchange may be effected by the word 'give,' as well, as by the word 'sell'. The transaction which goes by the name of Hiba‑bil‑Iwaz in India is, therefore, in reality not a proper Hiba‑bil‑Iwaz of either kind, but a sale; and has all the incidents of the latter contract. Accordingly, possession is not required to complete the transfer of it, though absolutely necessary in gift, and, what is of great importance in India, an undivided share in property capable of division may be lawfully transferred by it, though that cannot be done by either of the forms of the true Hiba‑bil‑Iwaz. The true hiba‑bil‑iwaz he has divided into two kinds, the first where return is stipulated and the second where it is not stipulated. He has then mentioned a hiba‑bil‑iwaz of the lawyers of India which is only a sale. These three kinds of transfer are obviously in their incidents quite distinct from one another. The confusion which was thus introduced with respect to the use of this term was maintained by Macnaghten who said: "They say that a hiba‑bil‑iwaz is a sale in every sense of the word." Ameer Ali fully explained a hiba‑bil‑iwaz and a hiba‑bil‑shartul‑iwaz but after stating what was meant by hiba‑bil‑iwaz said. (Page 162, Vol I):- "In all these cases the consideration is not a part of the contract. And the rules stated above do not, therefore, apply to what in modern times is called a hiba‑bil‑iwaz, which is a transaction of quite a different nature, and partakes to a certain extent of the second kind of iwaz mentioned in the Fatawai Alamgiri, viz., where it is stipulated in the contract, In this kind of hiba‑bil‑iwaz the consideration is directly opposed to the object of the gift both being in esse; there is no suggestion of one being subsequent to the contract. The grant and, the consideration are parts of one transaction. A hiba‑bil‑iwaz, therefore, is a sale in all its legal incidents." This confusion then crept into judgments with the result that in a number of judgments hiba‑bil‑iwaz was described as having the incidents of a sale.

6. Let me now state the correct position. Out of the two clauses of true hiba‑bil-iwaz stated by Baillie, the first, that is, the one in which a return is stipulated, is a hiba‑bil‑shartul‑iwaz and the second, the one in which the return is subsequent and not stipulated is a hiba‑bil‑iwaz. The hiba‑bil‑iwaz of India referred to by Baillie is a simple sale. The difference between a hiba‑bil‑shartul‑iwaz and a sale is one of form. Shafies main tain that it is a sale. Hanfi doctors while accepting that it is in spirit a sale and is subject to pre‑emption maintain that being in form a gift and it being possible that effect be given to the form as well as the spirit, it should be distinguished from sale. I quote below the discussion on this point in Hidaya (Volume III page 306):‑ "If a person give something to another on condition of that other giving something to him in exchange for it, the mutual seizin of the respective returns is regarded; that is to say, the contract is nothing until the two seizins take place, and is made null by the subject of it, on either side, being mixed with other property. The reason of this is, that a deed of this nature is in its original a gift; but whenever the two seizins take place, it becomes, in effect, a sale; and, as such, a return may be made on account of a defect, or from an option of inspection ; and the right of Shaffa is also con nected with it. Ziffer and Shafie maintain that this is a sale both originally and ultimately, in as much as the character istic of sale namely, a conveyance of property for a return, exists in it; and in all contracts regard must be paid to the spirit of them, insomuch that if a master should sell his own slave to the slave himself, he (the slave) is in that case free. The arguments of our doctors are, that the contract compre hends two different shapes or descriptions.‑I. It is a gift with respect to the letter.‑II, It is a sale with respect to the spirit. It is therefore requisite to pas attention to both in the utmost possible degree. Now, in the deed at present under consideration, an observance of both is practicable, because, in a gift, the right of property is suspended till seizin; and, in a sale the right of property is undone in case of any invalidity. The effect of sale, moreover, is obligation and a gift also becomes obligatory upon giving r, return for it. Out of attention, therefore to both shapes, the contract is considered as being originally‑ a gift, and ultimately not a sale."

7. In treatises dealing Muslim Law as applied in India, it was not necessary to classify the so‑called Indian hiba‑bil‑iwaz which is a sale separately because sale was not in any part of India governed by Muslim Law which applied to gifts. In West Pakistan too, by virtue of section 2 of the Punjab Muslim Personal Law (Shariat) Application Act, 1948, and section 5 of the Punjab Laws Act with respect to the former Punjab area, and similar provisions relating to other parts of West Pakistan only the Muslim Law relating to gifts is applicable. So far as hiba‑bil‑shartul‑iwaz is concerned, it is till its completion a gift. On completion only it becomes a sale and, therefore, the Muslim Law would apply to it till it has, been completed

8. That to both hiba‑bil‑iwaz (as I describe it) and hiba -bil‑shartul‑iwaz, the rule as to delivery of possession is appli cable is a matter on which there is tic difference of opinion. In both of them delivery of possession is, essential. The case of hiba‑bil‑iwaz is simple enough, for it consists of two indepen dent simple' gifts. As regards hiba‑bil‑shartul‑iwaz, I have already quoted from Hadaya where seizin is regarded neces sary. To the same effect is the opinion of Ameer Ali and Tyabji.

9. There is one matter which should be explained. In the present case, what we are regarding as the first gift is not a hiba. It was just a case of something being done from which another person derived benefit. The appellant had filed a representative suit and Nut Din got the benefit of that suit. This is not a hiba, even it be regarded as a gift, for a hiba has not as wide a connotation as gift. It means a transfer of property. There was no transfer of property by the appellant. While the principle of a hiba‑bil‑iwaz may be applicable to the present case, it is not directly covered by the rule relating to hiba‑bil‑iwaz.

10. The learned District judge regarded the applicability of hiba‑bil‑iwaz excluded on the ground that Nur Din had not incurred any obligation and a suit for contribution did not lie. This is not a correct view. It is not necessary that an enforceable obligation should exist in respect of the first transaction. The first transaction in a hiba‑bil‑iwaz is a gratuitous transfer and creates no obligation.

11. On the first point the appellant fails, for the rule off necessity of delivery of possession cannot be excluded by the transaction being a hiba‑bil‑iwaz.

12. On the second question, however; the appellant is on firmer ground. As an ordinary rule of Muslim Law a gift is to be followed by delivery of possession, that is, the donor is to deliver to the donee whatever possession he has, but the objec tion as to delivery of possession is one which can be taken either by the donor himself or by his heirs and in a case where the donor is himself supporting the gift no effect can be given to an objection by a third party who is in possession and claims adversely to both donor and the donee. This proposition was laid down by their Lordships of the Privy Council long ago in Kalidas Mullick v. Kanhaya Lal Pandit and others (I L R 11 Cal. 121). That was a case of Hindus, but the proposition was not based on any special rule of Hindu Law. It was held:‑ "that a gift where the donor supports it, the person who disputes it claiming adversely to both donor and donee, is not invalid for the mere reason that the donor has not delivered possession; and that, where a donee, or vendee is under the terms of the gift, or sale, entitled to possession, there is no reason why the terms of the gift, or sale, though not accompanied by possession, whether of movable, or immovable property, (where the gift or sale, is not of such a nature as would make the giving effect to it to be contrary to public policy), should not operate to give the donee, or vendee, a right to obtain possession." This proposition was repeated by their Lordships of the Privy Council in Mohammad Bakhsh and others v. Hussaini Bibi and others (I L R 15 Cal. 684), a case of Muslims. In that case too, the donor, who was a lady, had not transferred possession at all for she was not in possession. Their Lordships, referring to the previous case, said: "The other point was, that the gift was invalid 'because possession was not given. That subject was considered in a case which came before this Board in 1884, Kali Das Mullick v. Kanhaya Lai Pundit. There it is stated that the principle on which the rule rests has nothing to do with feudal rules, and that the European analogy is rather to be found in the cases relating to voluntary contracts or trans fers, where, if the donor has not done all he could to perfect his contemplated gift, he cannot be compelled to do more. In this case, it appears to their Lordships that the lady did all she could to perfect the contemplated gift, and that nothing more was required from her. The gift was attended with the utmost publicity, the hibanama itself authorises the donees to take possession, and it appears that in fact they did take possession. Their Lordships hold, under these circumstances that there can be no objection to the gift on the ground that Shahzadi had not possession, and that she herself did not give possession at the time. The view seems to be supported by a passage in Macnaghten's Precedents, Case X, where the question was: If property left by two brothers devolve on the widows, are the widows entitled to dispose of their late husbands' property by gift, and if they have a right to do so, is the deed of gift executed by them in favour of one of the husband's heirs available in law ? Then it is stated that, 'although the widows at the time of the execution of the deed of gift were not seized of the property, yet if agreeably to their desire, the donee, in pursuance of a judicial decree, became subsequently seized thereof, the fact of the donors having been out of possession at the time of making the gift is not sufficient to invalidate it." Their Lordships had, in this case, accepted the applicability of the rule they laid down in the earlier case to a case governed by Muslim Law. The true reason of the rule of Muhammadan Law relating to delivery of possession was Stated by their Lordship's to be that a donor, because his act is gratuitous, cannot be compelled to do more than what he has done. If he has possession but he has not yet delivered it, lie cannot be forced to do. so. Similar is the reason of the rule given in the Hedaya. It says. "gifts are voluntary deeds and if the right to property was established in them prior to the seizin it would follow that delivery would be incumbent on the voluntary agent before he had voluntarily engaged for it."

13. In the present case, the rule of Muhammadan Law as to delivery of possession is not being violated if we have regard to the reason of this rule. Here, the donor has sup ported the gift and not only has hg, filed a written statement admitting the claim of the plaintiff and praying that a decree be passed in his favour, but he has appeared in the witness‑box and has made 4 statement that he has transferred this land in lieu of the expenses incurred by the plaintiff in the previous litigation and that he has no objection to the plaintiff being granted a decree. If possession is decreed in favour of the plaintiff, it will be in accord with the wishes of the donor himself. Truly, this suit may be considered as a method by which possession is being delivered by the donor to the donee. The Court should certainly help him to do so.

14. Learned counsel for the respondent has relied upon 59 I C 355, 23 I C 453 and 111 C 1, wherein the general propo sition that transfer of possession is necessary for a valid gift under Muhammadan Law has been laid down. Not one of them is a case where the donor was supporting the donee, and learned counsel for the respondent is unable to advance any reason why I should not follow the two Privy Council judg ments referred to above.

15. There is yet another reason why in a case in which the donor is not only supporting the gift but is a party to the, proceedings absence of delivery of possession should not invalidate the gift. No defendant can plead the right of one against whom the plaintiff has obtained a decree. Suppose, in the present case, the plaintiff, before filing a suit against Mst. Allah Rakhi, had first obtained a declaratory decree against Nut Din in a separate suit, Could Mst. Allah Rakhi have resisted this suit? She could not, for no one can plead the right of another who himself is debarred from pleading his own title on account of a decree against him. I have already dealt with this matter in P L D 1955 Lah. 570 where I held that every person is bound by an estoppel which affects the persons whose right he pleads. Even a transfer of title can be effected by a decree, obtained against the person who in fact has title. In such a case the decree not only creates res‑judicata but virtually transfers title to the decree‑holder for otherwise an. anomaly would be created that whereas the true owner would be bound by the decree which declares the title of another person a stranger may be able successfully to plead the title of such true owner.

16. Now, if, instead of filing a separate suit against the donor the donee filed a joint suit impleading the donor as well as the person in possession, it should not make any difference to the relief which can be granted, for the situation is substantially the same. In the present suit too, a decree has to be passed against Nur Din. Nur Din is admitting the title of the plaintiff. The plaintiff has not specifically asked for a declara tion of title but may have done so and in the relief of posses sion such a declaration is really involved. A declaratory decree would ordinarily have to be granted against Nur Din on his admission, and if a decree is to be passed against him the result should be the same as if a decree had already been passed. It will not be correct to grant a declaratory decree in this suit against Nur Din and dismiss it against Mo. Allah Rakhi. Mst. Allah Rakhi Cannot plead that Nur Din still retains his title whereas there is a decree against Nur Din saying that title is now with plaintiff.

17. I may mention here that Syed Amir Ali has in his treatise on Muhammadan Law stated that a gift of property without delivery of possession is valid if the donor supports the gift. Rahim Bakhsh v. Muhammad Hasan (I L R 11 All. 1) has also been cited during arguments. It was held in that case that Muhammadan Law does not prevent the transfer of a mere right and a person who is out of possession may still transfer his rights though lie cannot deliver possession. This judgment has been accepted as good by Mulla in his Muhammadan Law. I do not feel it necessary to discuss whether the case has been correctly decided.

18. As a result, I hold that the gift is valid, because the donor is supporting the gift. This appeal is accepted and the suit decreed with costs throughout. Leave to appeal under the letters patent is granted. K. M. A. Appeal accepted.