P L D 1960 (W (PLP)

Respondent Jan Muhammad in the year 1943‑44 gifted his half share out of his two annas share consisting of 16 acres of agricultural land in Deh Dambharlo, taluka Umerkot, Tharparkar, to Bahadur, his nephew, on condition that he would reside, serve and look after him, a sickly and aged person, and would be loyal and faithful to him. At the time of the gift, the respondent had no issue but about 8 or 9 years before the institution of the suit, got a male issue. Thereafter relations between the parties became strained. Respondent alleged that appellant had not fulfilled the conditions of the gift, does not reside with him, and has mis appropriated the property gifted to him. Accordingly he filed a suit for declaration and injunction that the gift has been revoked, and the appellant had no interest left in the property in dis pute. The appellant denied these allegations and contended that there was no condition attached to the gift, that it cannot be revoked, and the suit was time‑barred as he was in adverse posses sion of the land in dispute. Mr. Abdul Wali Muhammad Jaffar Makhdum, First Class Sub‑Judge, Mirpurkhas in Suit No. 73 of 1958 by judgment dated 8th December 1958 found that the suit was not time‑barred, that the gift was conditional and revocable and passed a decree in favour of the respondent. The appellant took up this matter in appeal before Mr. Ali Muhammad V. Akhund, II Assistant Judge, Tharparkar, Mirpur khas. The learned Assistant Judge in Civil Appeal No. 8 of 1959 by a judgment dated 14th May 1959 held that the gift was valid, the respondent was entitled to revoke the gift, and the suit was not barred by limitation, but allowed the appeal on the ground that the respondent should have filed a suit for possession and the suit was not maintainable under section 42 of the Specific Relief Act. However, he remanded the case to the trial Court with directions to allow the respondent to amend the plaint so as to seek further relief for possession on payment of proper court fees. Mr. Rochiram, the learned counsel for the appellant, has challenged the finding of both the Courts below in this appeal. He conceded that the gift was made on condition that the appel lant would live with the respondent and serve him, but contended that the finding of the Subordinate Courts that one of the condi tions of the gift was that if the respondent got a son, he would revoked it, is incorrect. The learned counsel referred me to the plain to show that no such ground was taken in it. In my opinion both the Courts below failed to notice that the ‑respondent in this respect improved his case during the trial and were not justified in holding that it was one of the conditions attached to the gift. But this point is not very material for the decision of the appeal. The learned Assistant Judge was perfectly justified in holding that the conditions attached to the gift do not render it invalid. He was also right in holding that the breach of such conditions did not render the gift inoperative. Thin view is in keeping with the rule of Muhammadan Law that when a gift is made subject to a con dition which derogates from its completeness, the condition is void and the gift will take effect as if no condition was attached to it. It was, however, argued both by Mr. Rochiram, counsel for the appellant, and Mr. Shamsui Ghani Khan, counsel for the respondent, that the gift in question was a hiba‑bil‑iwaz or a hiba ba‑shart‑ul‑iwaz. The former raised this contention in order to substantiate his argument that a gift in the nature of hiba‑bil‑iwaz cannot be revoked and the latter took up this point with a view to contend that as it was not conveyed by a written registered docu ment it was not a valid transaction and cannot be recognised under the ordinary law. Mr. Rochiram referred me to two decisions of the Oudh Judicial Commissioner's Court reported in Mst. Lal Bibi v. Alasum Ali Khan (A I R 1917 Oudh 347) and Imdad Ali v. Ahmad Ali (A I R 1925 Oudh 518). It was held in these cases that a gift in consideration of useful services rendered by the donee to the donor in the past and natural love and affection is a hiba‑bil‑iwaz. On the other hand the Allahabad High Court in a decision reported in Rahim Bakh.sh v. Muhammad Hasan (I L R 11 All. 1) expressed a contrary view on this question. In that connection Mahmood, J. observed "The fundamental conception of hiba‑bil‑iwaz, or a gift for an exchange, as understood in the Muhammadan Law, is that it is a transaction made up of two separate acts of donation, i.e. of mutual or reciprocal gifts of specific property between two persons, each of whom is alternatively donor and donee. It does not include the case of a gift in consideration only of natural love and affection or of services or favours rendered. Nor does such a gift fall under the category of hiba‑bil‑iwaz in its improper sense of sale ; but it is an ordinary gift subject to all the conditions as to validity which the Muhammadan Law provides." In my opinion the view taken in the Allahabad case is in accord ance with the original text of the Muhammadan Law on the subject. It appears to me that a gift in consideration of services rendered by a person is not in the nature of hiba‑bil‑iwaz because there is no exchange of any property between the donor and the donee. The donor gifts the property in appreciation of the services rendered by the donee. Merely because the services rendered by the donee can be converted into money value, it does not follow that the donee has given it in exchange to the donor. Services are either rendered in the past or in the future and there is no imme diate transfer of any property from the side of the donee to the donor. I am, therefore, of the view that the contention of both the learned counsel that the gift in question is a hiba‑bil‑iwaz or hiba‑ba‑shart‑ul‑iwaz has no force at all. It was next urged by Mr. Rochiram, the learned counsel for the appellant, that the view of both the Courts below that the gift in question could be revoked under the Muhammadan Law is not correct according to the well recognised principle on the subject. The learned counsel referred me to section 167 of the Principles of Muhammadan Law (14th Edition) by Mulla and contended that a gift cannot be revoked after the delivery of possession in a case when the donee is related to the donor within the prohibited degrees. The learned counsel argued that the appellant being the nephew of the respondent stood in relationship with him within the prohibited degrees and for taxis reason the respondent is not entitled to revoke the gift. He referred me to two decisions reported in Tajju Khan v. Mazhar Khan (A I R 1952 All. 614) and Muhammad Latif v. Muhammad Nawaz and another (P L D 1960 Lah. 130). It was held in these cases that under the Muhammadan Law a gift by one person to another who is so closely related (e.g. brothers) that the marriage between the two, if it could physically take place (i.e. if the two belonged to opposite sexes), would be illegal and cannot be revoked. It was also held that it was not necessary that the donor and the donee should be of the opposite sex so as to come within the prohibited degrees of relationship for purposes of revocation of the gift. Mr. Shamsul Ghani Khan, the learned counsel for the respon dent, however, invited my attention to a decision of a Bench of the Judicial Commissioner's Court, Peshawar, reported in Ghulam Muhammad and others v. Din Muhammad (A I R 1936 Pesh. 208) in which it was held that a sister's son was not related within the prohibited degree to his maternal uncle and a gift to him could be revoked. The learned counsel for the appellant also referred me to Hedaya by Hamilton and Digest of Muhammadan Law by Baillie to show that the relationship between the parties within the prohibited degree contemplated under the Muhammadan Law does not mean that the donor and the donee should be of the opposite sex. Kidwai, J. has referred to the view of all the old Muslim Jurists in A I R 1952 All. 614. 1 could only lay my hands on Hamilton's Translation of Hedaya by Grady (2nd Edition) and Ballie's Digest of Muhammadan Law (2nd Edition). In both the works it is stated in general terms that it is not lawful for a person to resume a gift to a relation within the prohibited degree. But the following passage in Ballie's Digest of Muhammadan Law at page 534 leaves no doubt that the relationship with the prohibited degree is not confined to persons of opposite sexes Relationship within the forbidden degree prevents the revo cation of a gift, whether the relative be a Muslim or an infidel ; and there is, consequently, no revocation of gifts to fathers and mothers, how high soever, or children how low soever ; the children of sons and the children of daughters being in this respect alike. In the same manner there is no revocation of gifts to brothers and sisters, and paternal uncles and aunts. But where the prohibition is for some other cause than consangui nity it does not prevent revocation ; as in the case of fathers and mothers, or brothers and sisters by fosterag, and of mothers of wives, step‑sons, and the wives of sons, and husbands of daughters who are prohibited by affinity. The point is further elucidated by certain cases cited by Muslim Jurists. In Darr‑ul‑Mukhtar it is stated that a man makes a gift to his brother and a stranger of something which is undivided and gives possession of it. There may be a recovery so far as the stranger is concerned because there is no impediment. Similarly, in Fatwa Alamgiri, in the chapter relating to the revocation of gifts the following illustration is approved "It is said if a foreigner (male) came to our country as a per mitted visitor and he has a brother in our country who is a Muslim, and either of them makes a gift of something to the other, then that gift cannot be revoked." In his "Principles and Precedents of Muhammadan Law" MacNaughten has also cited the following precedent approved by the doctrine of Muslim Law "Q.‑A person died, leaving as his heirs, two widows and a daughter. A few years after his death, both the widows made over by gift to the daughter, all their right and title to the property left by the husband. She (the donee) executed an agree ment in favour of her mother, engaging to provide her during her lifetime with food and raiment and, after her death, to per form her funeral ceremony and obsequies. The donors caused the rents of the estate to be paid to the donee who, afterwards, before the death of her step‑mother, disposed of the landed property so acquired by gift to the defendant, and he, four months after the death of the donor (who died before her step mother), took possession of all her property by virtue of gift. It is proved by the testimony of witnesses, that the donee is a son of the donor's uncle, does not appear. Now the mother of the first donee (that is to say one of the widows who survives) wishes to revoke the gift which she made in favour of her daughter. Under these circumstances is she, according to Muhammadan Law, competent to resume the gift, and to recover the estate from the possession of the second donee or not? "C . . . . . The donor is not entitled to revoke the gift which she made in favour of her daughter, because, in this case there are two obstacles to resumption ; first " the death of the donee . . . and secondly, relation within the prohibited degrees ; as is stated in the Hidaya if a person makes a gift of anything to his relation within the prohibited degrees, it is not lawful for him to resume it . . . . It is thus very clear that the words "that a gift to a relation within the prohibited degree" are used in a wider sense and includes the cases of persons of opposite sexes. I agree with the view of Kidwai, J. that these words are used compendiously to describe the degree of relationship which should be such as to exclude the legality of marriage between the two where such a marriage is physically possible. Instead of reciting the numerous degrees of relationship, one phrase is used which would cover them all. The learned Judge is perfectly justified in his observation that there is no con fusion in this respect on the Arabic texts because, in that language, the form of verb as used is different if the subject of that verb is a male from what it would be if the subject is a female, but the difficulty arises when these words are translated into English and that is why the confusion is caused. It will, however, be pertinent to note here that the words "relationship of prohibited degrees" in Baillie's Digest of Muhammadan Law have been used in wider sense in other context also. For example in Chapter III of the Maintenance of Relatives at page 467 it is stated "Every relative within the prohibited degrees is entitled to maintenance, provided that, if a male, he is either a child and poor, or, if adult, that he is infirm or blind and poor, and if a female, that she is poor whether a child or adult." Similarly, in Hedaya a translation by Hamilton at page 147 it is stated "It is a man's duty to provide maintenance for all his infant male relations within the prohibited degrees, who are in poverty ; and also to all female relations within the same degrees, whether infants or adults, where they are in necessity ; and also to all adult male relations, within the same degrees, who are poor, and dis abled, or blind ; but the obligation does not extend beyond those relations, because the duties of consanguinity are not absolutely incumbent towards any, excepting the nearer (or Karreebhat) degrees of kindred . . . ." Later on at page 148 it is stated "Maintenance is due to a relation within the prohibited degrees, in proportion to inheritance; in other words, upon him who has the greatest right of inheritance in the said relation's estate, the largest proportion of maintenance is incumbents and upon him who has the smallest right, the smallest property, and so of the others, because it is said in the Koran, `THE MAINTE NANCE OF A RELATION WITHIN THE PROHIBITED DEGREES RESTS UPON HIS HEIR.' and the word heir, shows that in adjusting the rate of maintenance the proportion of inheritance is to be regarded." This being the position it is not possible for me to give the words "relationship within the prohibited degree" a restricted meaning. In my view, both Shafi, J. in P L D 1960 Lah. 130 and Kidwai, J. in A I R 1952 All. 614 have correctly exposed the Principles of Muhammadan Law on this question and have rightly held that the words "prohibited degree" must be given artificial meaning as describing the degree of relationship which should be such as to exclude the legality of marriage between the two if such a marriage was physically possible. On this view of the matter it appears to me that a nephew stands to his uncle in relationship of prohibited degree and the respondent is not entitled under the Muhammandan Law to revoke the gift in favour of his nephew as he had already parted possession of the property in dispute. Two further points were raised by Mr. Shamsul Ghani Khan in support of the respondent's case. Firstly that the gift being of an undivided property i.e. Mushaa is not valid and secondly, that the provisions of the Transfer of Property Act applied to the law of gifts in view of the provisions of the Shariat Act of 1937. As far as the first question is concerned, the case of the respon dent was that his two annas share was separated from the other co‑sharers, and at the time of gift 16 acres of land were in his possession. It was out of those 16 acres of land that he gifted his half share to the appellant. Thus the gifted property is not a gift of an undivided property and cannot be considered to fall within the four corners of the doctrine of Mushaa recognised under the Muhammadan Law. Moreover a gift of an undivided share (or Musbaa) in property which is capable of partition is irregular but not void. If possession is once taken the gift is validated. This doctrine however is not applicable to those cases where the gift is of a share in Zamindari or Taluke. Admittedly the pro perty which was gifted by the respondent to the appellant was of a share in a Zamindari land and is not hit by the doctrine of Mushaa. In section 160 of Mulla's Principles of Muhammadan Law (14th Edition) it is clearly stated that a gift of an undivided share (Mushaa), though it be a share in property capable of divi sion, is valid from the moment of the gift, even if the share is not divided off and delivered to the donee, amongst others, in a case where the gift is of a share in a Zamindari or Taluka. This being the position under the Muhammadan Law, the contention of the learned counsel for the respondent in this respect has no merit and is negatived. It was next contended by Mr. Shamsul Ghani Khan that the rule of Muhammadan Law is applicable only in so far as it has not been excluded by legislative enactment. According to him under section 26 of Bombay Regulation IV of 1827, Muhammadan Law is applied as a rule of equity, justice and good conscience. The learned counsel argued that under the Muslim Personal Law (Shariat) Application Act, 1937 this section was repealed and now the principles of Muhammadan Law are no longer applicable to gifts and the case should be decided according to the provisions of the Transfer of Property Act. The argument has no founda tion. The object and scope of Shariat Act, 1937 is to abrogate custom and usage in so far as it has displaced the rule of Muhammadan Law and did not invalidate the custom itself. It only enables the person affected to abandon the custom and adopt the Muhammadan Law. Now section 26 of the Bombay Regula tion IV of 1827 only provided that in those cases where neither an Act of Parliament nor the ordinary law nor usage applies, the principle of justice, equity and good conscience will apply. This section however was repealed only as far as it was inconsistent to the Shariat Act, and only affected customary law as applied to non‑agricultural property in certain Provinces. Admittedly in the area known as Sind no customary law is applicable and Shariat Act did not materially affect the position of Muslims in this Province. Moreover the property in dispute is agricultural land and section 26 of Bombay Regulation IV of 1827 still continues to apply. This contention also fails. On the view which I have taken of the matter, the judgments of both the Courts below cannot be upheld as the appellant stands in relationship of blood within the prohibited degrees with the respondent. The respondent is not entitled to revoke the gift and cannot succeed on this ground. Accordingly I will set aside the decree and judgments of the Courts below and allow the appeal. For the reasons given above, the appeal is allowed but the parties are ordered to bear their own costs throughout. K. B. A. Appeal allowed.