P L D 1960 Dacca 489 (PLP)

4. The suit was contested by defendant No.

1. Defendant No. 2 substantially supported the case of the plaintiff. The case of defendant No. 1 was that his brother Karamali has really brought the suit in the benami of the plaintiff without her knowledge and denied the allegations of possession of the plaintiff and dispossession by the defendant. His specific case that defen dant No. 2 nika‑married the mother of Khair, Baher and Taher, three brothers, who since then used to reside with defendant No. 2 along with their mother and they used to serve and take care of defendant No. 2 as their own father and also paying the debt of defendant No.

2. So, he (defendant No. 2) became very pleased with them, and in consideration thereof, made a gift of his entire share in the holding including the suit land along with other land in their favour and delivered pos session thereof by executing a deed of hiba on the 14th Magh, 1347 B. S. His further case is that though the deed appears to be a simple hiba, in reality it is a hiba‑bil‑iwaz and the donees subsequently sold away the entire hiba land including the disputed plot to defendant No 1 by the kabala, dated 2nd Baisakh, 1353 B. S. corresponding to 15‑4‑46, and since then defendant No. 1 has been in possession of the land of the hiba including the disputed land. Thereafter defendant No. 1, in order to strengthen his title thereto, obtained a kabala in the benami of his mother on 21‑9‑

53. The kabala was all along with him but, at the time of his separation from his brothers, his brother Karamali clandestinely took it away from him. After this deed of hiba, defendant No. 2 ceased to have any right, title and possession therein and, as such, his kabala in favour of the plaintiff is a benami document by virtue of which the plaintiff acquired no title. When defendant No. 1 and his brother separated, his brothers demanded the share of the disputed jote from him but defendant No. 1 refused to give them any share when his mother, the plaintiff, requested him to give them some share. Defendant No. 1 could not comply with the request of his mother. So, the plaintiff, in collusion with his son Karamali has brought this suit.

5. On these pleadings, the questions that arose before the Courts below were whether the kabala, Exh. 1, in favour of the plaintiff by defendant No. 2 Namdar was a benami kabala and whether the deed, Exh. 4, executcd by Namdar in favour of his three step‑sons is a simple hiba or a hiba‑bil‑iwaz and whether it is revocable.

6. Both the Courts below found that the kabala, Exh. 1. by Namdar in favour of the plaintiff was not a benami document and that the deed, Exh. A is not a hiba‑bil‑iwaz but a simple hiba and, as possession required under the Muhammadan Law to validate a hiba was not delivered to the donees by the donor, who continued to possess the land of the gift after the hiba, it was not a valid hiba under the Muhammadan Law and, as such, defendant No. 1 had not acquired any interest in the disputed land. In view of this finding, both the Courts below decreed the suit of the plaintiff. Hence this appeal by defendant No. 1.

7. Mr. Acharyya the learned Advocate for the appellant, contends that the donor and the donees are in a position of loco parentis and live in the same house and, as such, formal delivery of possession is not necessary and the bare statement, "I give you the delivery of possession of the land, the subject matter of the gift" will change the character of the possession of the donees, that the gif t being a joint gift to more than one person, the subject‑matter of the gift need not be divided into three parts in order to give delivery of possession of each part to each of the donees and that the doctrine of Mushaa is not applicable when the subject‑matter of the gift has been delivered by the donor and possession taken by the donee and, as such, the learned Advocate contends that the Courts below are absolutely wrong in holding that there was no delivery of posses sion as required under the Muhammadan Law for the validity of a Muhammadan gift and the hiba was not valid:

8. His second contention is that the transaction is not a simple hiba but a hiba‑bil‑iwaz which does not necessitate any delivery of possession for its validity. Therefore, the learned Advocate contends that the Courts below should have held that defendant No. 1 has acquired a good title in the disputed land and the plaintiff's suit should have been dismissed.

9. The question of benami was not pressed before me and the findings of the Courts below that the document, Exh. 1, is not a benami document will, therefore, stand.

10. The Courts below in decreeing the suit of the plaintiff held on evidence that defendant No. 2 Namdar, the donor, did not give up possession of the land, the subject‑matter of the gift, and the donees, the three step‑sons of Namdar, did not possess it by virtue of the hiba. Mr. Acharyya contends that the donor and the donees stand in a position of loco parentis and are living jointly in the disputed land and are already in joint possession of the same and, as such, formal delivery of possession is not necessary and that a bona fide intention to give possession is sufficient for the purpose of validity of a gift under the Muhammadan Law. In support of his contention, Mr. Acharyya relies on sections 152 (3) and 155 of Mulla's Muhammadan Law, 13th Edition. Section 152 (3) provides as follows: "(3) Where donor and donee both reside in the property‑ No physical departure or formal entry is necessary in the case of a gift of immovable property in which the donor and the donee are both residing at the time of gift. In such a case the gift may be completed by some overt act by the donor indicating a clear intention on his part to transfer posses sion and to divest himself of all control over the subject of the gift." It is no doubt true, when a person is present on the premises' proposed to be delivered to him, a declaration by the person previously in possession puts him into possession without any physical departure or formal entry. In the present case, the three steps‑sons, Khayer, Baher and Taher, were living with Namdar since he‑nika‑married their mother and they were cultiva ting the land of Namdar on his behalf and for his benefit. Though they were participating in the consumption of the usufructs of the land, as they were living in the same mess of Namdar that does not necessarily follow that the donees are residing with the donor in the property consisting of agricultural land. So, it does not bring the case within section 152 (3) of Mulla's Muhammadan Law.

11. Mr. Acharyya next contends relying on the case of Sk. Golam Gous and others v. Sk. Raujan and others (50 C W N 81), that the donor and the donee are related and the subject‑matter of the gift is in actual possession of the donor and the donee and so, when the donor declares in unequivocal language that he has divested himself of the ownership and authorises the donee to take possession, the character of the donee's possession, which already existed, is altered, and, for all formal purposes, the gift must be considered to have been perfected by such delivery of possession as was feasible in the circumstances. In the case relied on by Mr. Acharyya (i.e. 50 C W N 81), the gift was by a grand‑mother to a grand‑son out of the property of the grand‑father inherited both by the grand‑mother and the grand son and they were in actual possession of the subject‑matter of the gift jointly with each other. In the present case, the so called donees are not in possession of any part of the land of the hiba. They are living with the donor and cultivating the land on his behalf and it cannot be said that they ace living in the property and are in actual possession of the disputed land. Therefore, actual delivery of possession of the property to the donees by the donor and divesting himself of the possession of the land is absolutely necessary. The case reported in 50 C W N 81 is distinguishable from the facts of the present case.

12. As to the findings of the Courts below that the property, the subject‑matter of the gift, comprises some undivided share of a holding and, as such, the doctrine of Mushaa will apply and, without separating the property from the rest, actual delivery of possession was not possible, as well as that the gift was in favour of more than one person jointly and cannot be effected without division of the respective share and giving separate possession to each of the donees, I think Mr. Acharyya is correct in his contention that under the Muhammadan Law gift of undivided property whether valid or not, the possession given and taken in such a gift effectually transfers the property. Mr. Acharyya, in support of his contention, relied on the decision in the case of Sheik Muhammad Mumtaz Ahmad and others v. Zubaida Jan and others (16 I A 205) in which at page 215, their Lordships observed : "The authorities relating to gifts of Mushaa have been collected and commented upon with great ability by Syed Ameer Ali in his Tagore Law Lectures of 1884. Their Lordships do not refer to those lectures as an authority, but the authorities referred to show that possession taken under an invalid gift of Mushaa transfers the property according to the doctrines of both Shiah and Sonee schools (see pages 79 and 85). The doctrine relating to the invalidity of gifts of Mushaa is wholly unadapted to a progressive state of society, and ought to be confined within the strictest rules."

13. As to the gift by Namdar to his step‑sons jointly, under section 151 of Muhammadan Law, it appears that the gift is not void. It is only invalid and can be validated by subse quent arrangement between the donees with regard to the property gifted. There are authorities to show that joint gift in favour of two or more donees is not void in its inception) and it may be rendered valid by subsequent arrangement u between the donees (Ballie, page 524 and Hadaya, page 485). The Bombay High Court in the case of Ebrahim Alibhai v. Bail Asi (I L R 58 Boni. 254) held that the rule is obsolete and that the gift can be made to two donees although they are to hold the property as tenants‑in‑common. Be that as it may, on this ground, namely, that the gift is in favour of two or more persons and comprises a share of undivided immovable property which is divisible, the gift has not been rendered invalid; but want of delivery of possession, one of the three essentials of the gift has made the gift ineffective.

14. Mr. Acharyya then contends that there are elements in the deed of gift which clearly show that in reality it was a hiba‑bi-biwaz. In the deed, Exh. A, it is stated as follows :‑-- "You are my step‑sons, I have nika married your mother and since my marrying your mother you have been performing all my domestic works by living in my house as my own sons, and nursing me and looking after me with great care as your' own father. For these reasons, a deep love has grown in me for you. You have been paying off all kinds of debts by living in my family and, hoping that you will do the same (in future), I have become greatly pleased with you and, on my having desired to make a gift of the properties held by me in my right, title and possession as described in the Schedule below, the value whereof will be about Rs. 200 only, according to the present market price, and on your having become agreeable to that, I made a gift of the properties held by me in my right, title and possession described in the Schedule below in your favour and relinquished possession of the same in your favour. Now, in support of the said gift, I do hereby execute this deed of gift and, in doing so, I do hereby agree and promise that . . . . . . "

15. Mr. Acharyya contends that from this recital in the deed of hibanama it appears that the deed was executed for consideration, not only of love and affection but also of the payment of debts of the donor and also of the promise to pay such debts in future. Therefore, according to him, it is a hiba‑bil‑iwaz, which means a gift in exchange of something concrete and tangible, namely, payment of debts and the promise to pay the same in future. But I am unable to accept this con tention and interpretation of Mr. Acharyya as correct. Love and affection of the donor Namdar for his three step‑sons grown in consideration of nursing and care‑taking and the fact that these three step‑sons were working in the land of Namdar and by producing the usufructs they were helping him in payment of his debts may be a consideration in the mind of Namdar to make a gift in their favour. But, certainty from the recital above, it does not appear that in lieu of the payment of debts the deed of gift (hibanama) was executed. There is a difference between the consideration in the mind of the donor which induced him to make a gift and the consideration which actually forms the basis of the transaction of hiba‑bil‑iwaz. Consideration for hiba‑bil‑iwaz must be actually paid and there must be bona fide intention on the part of the donor to divest himself in praesenti of the property and to confer it on the donee and a mere pro mise to pay would not amount to consideration, as has been held in the case of Muhammad Yahaya Ali Shah v. S. Sardar Ali Shah and others (A I R 1939 Lah. 222). Hiba‑bil‑iwaz means a gift for considera tion. From the document itself, it does not appear that there was any other consideration for the gift. The love and affection grown out of nursing and care‑taking of the donor and the fact of payment of the debts and promise to pay the same in future were all considerations not of the deed of gift but only in the mind of the donor, as stated, which induced him to make the gift. So, it is not a gift for consideration.

16. As to the delivery of possession, two essential conditions to make hiba‑bil‑iwaz are (1) the actual payment of the consider ation by the donee and (2) the other is a bona fide intention on the part of the donor to divest himself in praesenti of the property. The donor himself is a party to this suit. He deposed in this case that he executed the hiba deed with a view to make provision for them and with the object that they would get the hiba land after his death and no possession was delivered in their favour and they did not possess it by virtue of the said hiba. Both the Courts below found that Namdar did not divest himself of the gifted property and was in possession as before through his step‑sons.

17. Mr. Acharyya relied on the observation of their Lord ships of the Privy Council in the case of Sheik Muhammad Mumtaz Ahmad and others v. Zubaida Jan and others (page 216) as follows :‑ "In the deed of gift she declared (an admission by which Usman as her heir and all persons claiming through him were bound) that she had made the donee possessor of all properties given by the deed ; that she had abandoned all connection with them ; and that the donee was to have complete control of every kind in respect thereof. Ahmad Hussain, the daughter's husband, was the general manager of both mother and daughter, and would doubtless take care that the deed of gift should be carried into effect. Their Lordships have no doubt that sufficient possession was taken on behalf of the daughter to render the gift effectual. If possession were once taken and the deed of gift took effect, no subsequent change of possession would invalidate it." The learned Advocate, Mr. Acharyya, then contends that the recital in the document, Exh. A, shows that Namdar had given delivery of possession of the hiba land and his giving up pos session is binding on him and also on the persons claiming through him. It is no doubt true that this recital is binding on them but from that it does not necessarily follow that they are not entitled to disprove the recital. In the present case, the plaintiff adduced evidence to show that Namdar never gave up possession and never gave the land in possession of the so -called donees and he remained in possession of the land as before through them. Both the Courts below also found that the defendants failed to prove that they possessed the land, the subject‑matter of the gift, on the basis of the gift. In view of the finding of the Courts below on evidence already on record that Namdar never gave up possession nor did he intend to divest himself of the possession, the gift, Exh. A, is not valid. I may further point out that the gift was not made by the hibanama, Exh. A. From the recital it appears that the gift had already been made before and this deed of hibanama was executed in support of that gift which had already been made by Namdar in favour of his three step‑sons. Therefore, whether Namdar had delivered actual possession of the subject‑matter of the gift to the donees at the time can be gone into and it has been sufficiently proved and found by both the Courts below that he toad never delivered possession nor divested himself of the possession of the hiba land.

18. Therefore, it is quite clear that the gift was not valid for want of delivery of possession and that it is not a hiba‑bil- iwaz as contended by defendant No. 1 before the Courts below and reiterated by Mr. Acharyya on his behalf in this Court. Therefore, the defendant has not acquired any right, title and interest of Namdar, the alleged donor, who had subsisting right, title and interest in the disputed land to transfer it to the plaintiff by Exh. I.

19. Mr. Acharyya then contends that the plaintiff and defendant No. 2 are not entitled to lead any oral evidence under section 92 of the Evidence Act to vary the terms of the written contract between the parties.

20. On the other hand, Mr. Aziz, the learned Advocate for the respondent, contends, relying on the case of Peer Baksh v. Rabia Khatun and others (P L D 1958 Dacca 198), that any fact may be proved under the proviso (1) to section 92 of the Evidence Act which would invalidate any document or which would entitle any person to any decree or order relating thereto, such as fraud, intimidation illegality, want of due execution, want of capacity in any contracting party or failure of consideration, or mistake in fact or law. Further the learned Advocate relied on a Full Bench decision of the Calcutta High Court in the case of Beni Madhab Das v. Sadasook Katary (I L R 32 Cal. 437) where the Calcutta High Court held :‑ "In order to enable a Court to arrive at a decision whether or not an agreement is void on the ground that it is by way of wager, the party, who sets up that it is, should be allowed to go into evidence to prove that it is so." In that case Woodroffe, J., further held:

"If the validity of a written agreement is impeached it is no defence to point to the apparent rectitude of the docu ment and to claim protection from inquiry under the rule embodied in section 92 of the Evidence Act, which exists against the contradiction and variance of the terms only of those instruments, the validity of which is not in question. The instances mentioned in proviso (1) of that section are illustrative and not exhaustive." Further I may point out that what is prohibited under section 92 of the Evidence Act is the evidence of any oral agreement or statement to be admitted as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to or subtracting from its terms and not any statement in the document. Oral evidence which goes to vary the terms of the contract may not be admitted into evidence between the parties, but if it is not related to any terms or intended to vary or add to or subtract from its terms, I think there is no bar of adducing oral evidence to prove matters other than those specifically mentioned in section 92 of the Evidence Act. So, I am unable to accept the contention of Mr. Acharyya that oral evidence to prove that possession was not delivered to validate the gift is not admissible in evidence on account of the bar of section 92 of the Evidence Act.

21. The result, therefore, is that this appeal is dismissed ; but, in the circumstances of the case, I make no order as to costs.

22. The prayer for leave under clause 15 of the Letters Patent is refused. K.B. A. Appeal dismissed.