P L D 1957 (W (PLP)

KAYANI, J.‑--The following pedigree table shows how the parties to this further appeal stand to each other:‑ Yaqut Khan= =Mst. Zebun Nisa (original (defendant 4) plaintiff) _____________________|________________________ | | | Masud Khan Daood Khan Mst. Khursheed | (substituted (defendant 5) | plaintiff) | | |______________________ | ______________________|________________________ | | | Aurangzeb Muhammad Sher Bakht Jamal (defendant 1) (defendant 3) (defendant 3) Masud Khan died during the life‑time of his father, who consequently made a gift of 726 kanals 8 marlas in the village Rustum in favour of the three minor sons of Masud Khan, the first three defendants in the suit. The mutation of gift was recorded on the 25th May 1949, and attested on the 4th August the same year on the statement of the donor. In an appeal, however, by Daood Khan against the order of mutation, Yaqut Khan retracted his consent, but his retractation was not accepted. On the 11th April 1950, therefore, he brought the present suit for a declaration that the gift was not binding on him (1) as he had not delivered possession and (2) he was a victim of fraud and undue in fluence practised on him by his grandsons, for in truth he had gifted one‑half of the land in suit in favour of the grandsons and the other half in favour of Daood Khan. In the alternative, there was a prayer for the possession of such area as may be found to be in the possession of the grand sons. Two days later he died, and was replaced by Daood Khan himself. The first three defendants contested the suit, and leaving apart the formal issues, the contest was on the following points:-- (1) Whether there was any fraud or undue influence. (2) If no, whether the gift was of only one‑half of the property in suit to the grandsons and the other half to Daood Khan. (3) If a valid gift is proved, whether defendants Nos. 4 and 5 were not bound by it. The trial Court found that there was neither fraud nor undue influence and that the gift was of the whole property; but that the donee had power to retract and had retracted in respect of one‑half. In the result, the plaintiff obtained a decree for the possession of one‑half of the gifted land jointly with defendants Nos. 4 and 5, whose shares according to Muslim law were declared. There were three appeals to the District Judge from this decree; one by Daood Khan, who challenged the entire gift; a second by Zebun Nisa and Khursheed, who in addition to chal lenging the entire gift, asked for the possession of their separate shares according to Muhammadan Law; a third by the grandsons, who challenged the finding that the gift could be retracted. The District Judge accepted the appeal of Zebun Nisa and Khursheed only to the extent that they were awarded a decree for the separate possession of their respective share, in one‑half of the land in dispute, these shares being 3/24 in the case of Zebun Nisa and 7/24 in the case of Khursheed, the remaining 14/24 being left to Daood Khan. Daood Khan was the first to come in further appeal to the High Court, and lodged three separate appeals against the three decrees. These were dismissed in limine by Muhammad Shafi, J. on 13th February 1954. Subsequently. Zebun Nisa and Khursheed brought an appeal from the decree by which their claim to the remaining half of the property had been rejected, while the three grandsons brought three appeals from the findings of the District Judge in the three cases before him. We have, therefore, to dispose of four appeals by this order. Now although it was broadly stated in the grounds of appeal‑ by Zebun Nisa and Khursheed that the findings of the Courts below were "against law and facts", and there was "'no subsisting and valid gift" in favour of the grandsons, the fact that Yaqut Khan admitted before the mutation officer that he had made the gift was not contested before us, and we see no evidence of any fraud or undue Influence having been practised by the minor grandsons on their grand father in securing the gift. Nor is there any indication that the gift related only to half of the property‑until before the Collector, Daood Khan was able to prevail upon his father to break faith by making a flimsy pretext. We have therefore, no doubt that the gift was a voluntary gift and that it was in respect of the whole property. The only two points which can bear argument are (I) whether the gift suffered by reason of non‑delivery of actual possession, and (2) whether it could be revoked. The argument in support of the power of revocation used by the Courts below is that the donor and the donee are not within the "prohibited degree" of relationship. As regards the first point, it is true that delivery of possession is one of the three essentials of a valid gift. (See among others Mulla's Principles of Muhammadan Law, 10th Edition, para. 195B.) But it is now established law that no transfer of possession is required in the case of a gift by a father to his minor child or by a guardian to his ward. All A that is necessary is to establish a bona fide intention to give. See para. 129 of Mulla's Principles. "Similarly, no change of possession is necessary in the case of a gift by a grandfather to his minor grandson, if the father is dead, for the grandfather is then the person to take delivery on behalf of his grandson as his guardian. This view has been accepted by the Supreme Court in Ghulam Hass‑in v: Sarfraz Khan (P L D 1956 S C (Pak.) 309), though it was observed that it does not apply to cases where the father is alive, because he is the guardian of the minors. In reply it was contended that there was no evidence that the minors were under the protection of their grand father. This is a matter on which evidence could have been led if it had been raised in the first Court, and we think we should presume that minor grandsons live under the protection of their grandfather when their father is dead. Some assistance was also sought to be derived from Musa Mia v. Kadar Bux (A I R 1928 P C 108), but that was a case where the donor was a maternal grandfather and the father was alive. The grandfather had merely stated during a dinner that he had made a gift in favour of his daughter's sons, but beyond this nothing had happened. Their Lordships of the Privy Council observed that the gift could have been saved if the donor had declared himself a trustee, but that, having not done so, he could not be held to be in possession on behalf of the minors. As regards the second point, it is clear that a gift can be revoked except "when the donee is related to the donor within the prohibited degrees" (Mulla, para. 140), but we think the Courts below have a mistaken notion of the term "prohibited degree" when they hold that grandsons are not within the prohibited degree of relationship in respect of their grandfather. For an explanation of this term we have been referred by both parties to the text of Durrul Mukhtar, reproduced in its Urdu Translation by Maulvi Khurram Ali, Volume III, page

504. We reproduce first the Arabic text:‑ "And Qaaf means qarabat (kinship); so if the donor gifts to his qarabatdar (kindred) who is a muhram‑i‑nasabi (prohibited by reason of blood relationship), even if the donee is a zimmi or musta' man, he shall not retract.". The translator then adds: "Muhram means a person with whom marriage is prohibited. The fact that the word muhram is quali fied here by nasabi, indicates that muhram‑i‑raza'i is excluded from this restriction." In other words, the pro hibited person referred to here is such person as is prohibited by reason of blood relationship, not by reason of fosterage. Thus, although a foster‑sister is prohibited in marriage, a gift in her favour may be retracted. The text then continues thus:‑ "And if the donor gifts to a prohibited person with whom he has no kinship, like a foster‑brother, ever though he is the donor's uncle's son, . . . . . . he can retract." The words which denote the prohibited degree of relation ship are (NI REHAM MEHRAM) (the prohibited person who is related). The use of (NASAB) introduces relationship by blood and excludes foster‑relationship. Thus, in order that retractation of an otherwise valid gift should become impossible, two conditions are necessary. First, the donee must be prohibited in marriage; secondly, he must be related by blood. Now when the text of Durrul Mukhtar speaks of prohibited re lationship, it makes no distinction as to sex, and it is only rational that if the two parties--‑the donor and the donee‑belong to the same sex, the sex of one of them should be altered so as to ascertain whether the relationship becomes forbidden in marriage. Thus, in the present case, if the grandfather is changed to grandmother, or the grandson to grand‑daughter, the prohibition becomes apparent. This seems to be elementary, for it is impossible to conceive of marriage between a male and a male, or between a female and a female. The argument that a grandson is not within the prohibited degree in respect of his grandfather makes it possible to conceive of marriage between a grandfather and his grandchildren; which is absurd. The term is used in respect of gifts merely to describe a relationship conveniently. In the illustration given above in Durrul Mukhtar, the donee is a foster‑brother and the donor is also a male person, for if the donor had been a female, the verb used would be not (WAHAB) The same indifference to sex will be noticed in another instance on the same page:‑ "If he gifts an indivisible object", such as a cup or a mill, adds the translator, "to his brother and a stranger, and both take possession thereof, the donor can retract (the gift) in respect of the stranger's share by reason of the absence of a prohibition." Here again, the verb wahaba indicates the donor to be a male person, and the prohibition indicated is in respect of his brother. At page 96 of the Fatawa‑i‑Hindiyya, which is an Urdu translation of Fatawa‑i‑Alamgiri by Maulana Sayyed Amir Ali, the following illustration occurs: "If a harbi (a person belonging to a country with which we are at war) is permitted to come to our country and he has a Muslim brother here, then if either of them makes a gift to the other, he cannot revoke it." Here again, both the donor and the donee are male. In Hamilton's Hedaya, page 486, column 2, it is stated that one reason why a gift to a kinsman within the prohibited degree cannot be resumed is that "the object of the gift is to increase the ties of affinity, which is thereby obtained," and naturally those ties would snap by revocation. It would be remarkable, indeed, if, in similar circumstances, the ties of relationship were to snap in the event of revocation by a grandfather in respect of his grand‑daughter, but remain whole in the event of revocation in respect of his grandson. There are only two cases on the subject to which we have been introduced. In one of these, Tajju Khan v. Mazhar Khan (A I R 1952 All. 614), Kidwai J. has succinctly reproduced a statement of the law as contained in various authorities and has reached the conclusion which finds favour with us. In the other case, Ghulam Muhammad v. Din Muhammad (A I R 1936 Pesh. 208), a Bench of the Judicial Commissioners at Peshawar held that a gift by an uncle in favour of his sister's sons did not fall within the prohibited degree of relationship. No reason has been given for this view, and we respectfully do not accept it. Even Mr. Allah Bakhsh, who figured n the appeal of Zebun Nisa and Khursheed, admitted that it did not lay down good law. In doing so, he conceded that the Courts below bad not appreciated prohibited relationship correctly. This point did not arise in the appeal of Zebun Nisa and Khursheed, and Mr. Allah Bakhsh had no instructions from his clients to oppose the appeals of Aurangzeb and his two brothers. As, however, we thought that Mr. Allah Bakhsh could render to us some assistance, we asked him to argue this point. His contention was that although the relationship between a grandfather and a grandson was as much of the "prohibited" kind as that between a grandfather and a grand daughter, a gift by a father and grandfather is always revocable, because while the father and grandfather do fall within the term muhram (prohibited), they are not ziraham, as they are not related through a female. For this view he relied on the definition of (ZAWI-AL-ARHAAM) in a useful book on the Muslim Law of Inheritance by Khalifa Mumtaz Hasan, Advocate of Multan: "Zawil Arham (ZAWI-AL-ARHAAM) are those heirs of the deceased who are related to him through blood, and who can be included neither among zawil furooz (ZAWI-AL-FUROOZ) nor among zawil asaba (ZAWI-AL-ASABI)". Zawil Furooz are sharers in the law of inheritance and Zawil Asaba are residuaries or lineal descendants. Mr. Allah Bakhsh, therefore, argued that since a son is a residuary and a father or grandfather is a sharer, they fall out of the term zi raham. It is not difficult to repel this argument. The conception of zi raham for the purpose of the law of inherit ance is based on its distinction from the two other terms, zil farz and zil asaba. In the texts relating to gifts the term is used literally and has been translated as qarabatdar. If the meaning put on it by Mr. Allah Bakhsh is accepted, the best part of the relations within the prohibited degree will be excluded from the benefit of irrevocability, for no reason based on commonsense. For the majority of prohibited relations are either sharers or residuaries, and of those related through marriage, very few indeed are prohibited Then there is no logic in extending the benefit to a mother‑in‑law but withholding it from a mother. If irrevocability is a virtue attendant on nearness of relationship, as indeed it is, it should be practised more in the case of a mother than of a mother‑in‑law. Mr. Allah Bakhsh also relied on the following passage from Hamilton's Hedaya, Grady's edition, page 485: "Of retractation of gifts", for the view that a gift by a father may be revoked: "It is lawful to a donor to retract the gift he may have made to a stranger. Shafai maintains that this is not lawful: because the Prophet has said, let not a donor retract his gift, but let a father, `if he please, retract a gift he may have made to his son;' and also, because retractation is the very opposite to conveyance‑and as a deed of gift is a deed of conveyance, it consequently cannot admit its opposite. It is otherwise with respect to a gift made by a father to his son, because (according to his tenets) the conveyance of property from a father to a son can never '` be complete; for it is a rule with him that a father has a power over the property of his son . . . . . With respect `'' to the tradition of the Prophet quoted by Shafai, the meaning of it is that the donor is not himself empowered to retract his gift, as that must be done by a decree of the Kazee, with the consent of the donee . . . . . . excepting in the case of a father, who is himself competent to retract a gift to his son, when he wants it for the maintenance of the son .." It is evident, however, that this is the view of Shafei, and if Shafei's view is accepted, then there can be no retracta tion except by a father in relation to his son. Firstly, we cannot carry the argument to a grandson; secondly, the "rule with him (Shafei) that a father has power over the property of his son" is an unorthodox rule and is meaningless in modern context, when, for instance, it is applied to the self‑acquired property of a son. It would mean that a father could gift away or sell the self‑acquired property of his son. Thirdly, the author of Hedaya understands the tradition of the Prophet quoted by Shafei to mean that the donor can retract his gift only through a Kazee's decree‑"excepting in the case of a father, who is himself competent to retract a gift to his son when he wants it for the maintenance of the son." In other words, it is only if the father wants the property for the son's maintenance that he can retract the gift without interven tion of the Kazee. Perhaps the reason why the author of Hedaya thus interprets the Prophet's tradition quoted by Shafei is that there is an opposite tradition also, quoted at page 486, second column, under the title, "A gift to a kinsman cannot be resumed." The tradition is to this effect: "When a gift is made to a prohibited relation, ‑it must not be resumed." We do not know what Shafei has said about this tradition, or would have said if be were confronted with it. But if he had said with the learned Judges in A I R 1936 Pesh. 208 that a son is not a prohibited relation, then a gift to a daughter at least would not be retractable. But then k, hat would happen to Shafei's own argument in favour of retractation . . that a father has a power over the property of his son? Would he say that there is no power over the property of a daughter? "It is curious," says Wilson in his Anglo‑Muhammadan Law (6th edition, page 430), "that the one case in which Shafei allows revocation is included among those in which the Hanafis disallow it, namely, gifts to relations within the prohibited degrees among whom `children, how lowsoever are expressly mentioned." He refers to Bailliea,

525. It was next contended that a joint gift in favour of two or more persons was not permissible, and reliance was placed for this argument on para. 135 of Mulla's Principles (tenth edition). "A gift of property which is capable of division to two or more persons without dividing it is invalid, but it may be rendered valid if separate possession is taken by each donee of the portion of the property given to him." We think it is time that the curtain were rung down finally on a doctrine which, in this particular matter, has earned for Abu Haneefa's scholarship an "unprogressive" name. Its exposi tion has become an obstruction to charitable or beneficent dispositions, and we see no sense, logic or utility in rendering futile a gift where the two joint donees have agreed among themselves, whether on the division of the property or on enjoying it jointly. Most people will be ignorant of this unserviceable provision and will see no fatality in making a Joint gift in favour of brothers or sisters. It is for this reason perhaps that Judges in British India have been ready in holding that a joint gift is permissible even without specify ing or dividing the shares of the donees. See, for instance, S. K. Golam Gous and others v. S. K. Ranja and others (50 C W N 81) and Mustaqim v. Diwan Chand (27 P L R 433). In Mulla's book itself three cases which contain a dis approval of this view have been reported. Thus Tyabji J. observed in Ebrahim v. Bai Asi ((1933) 58 Bom. 254), not without an adequate examination of authorities, that there is not "the least doubt in my mind that a gift may be validly made at the present day in India to two donees, notwithstanding the fact that the two donees are to hold the property as tenants in common." In Kaniz Farina v. Jai Narain ((1944) I L R 23 Pat. 216), a Division Bench described the doctrine of musha as "an archaic rule of Law" and sought support from, the observations of the Privy Council in Sheikh Muhammad Mumtaz Ahmad v. Zubaida Jan (L R 16 I A 205) that it is "wholly unadapted to a progressive state of society and ought to be confined within the strictest rules." In Muhammad Bakhsh Khan v. Hosseini Bibi ((1888) L R 15 I A 81) Lord Macnaghten in the Privy Council exposed the absurdity of some of its reasoning thus: "But it appears to be settled by Muhammadan Law that if there are two sharers of property, one may given his share to the other before division ...... Now, if one of two sharers may give his share to the other, supposing there are three sharers, what is there to prevent one of the three giving his share to either of the other two? Mr. Doyne was asked what confusion that would introduce. Mr. Doyne took refuge in the doctrine itself, which he said was a very refined doctrine. To extend it to this case would be a refinement of a refinement, amounting in their Lordships' opinion almost to a reductio ad absurdum. Their Lordships' reference to "confusion" goes to the root of the doctrine of mushaa, which literally means "con fusion." If a gift leads to confusion in respect of the property gifted, it is bad in law. Consequently, if the keeping of joint property by the donees leads to no confusion in their minds, why should the gift be regarded as invalid. But even on the text of Hedaya (page 485), the modern view of mushaa has received preference. "If one man makes a gift of a house to two men, the deed is invalid according to Haneefa. The two disciples hold it to be valid, because, as the donor gives the whole of the house to each of the two donees (inasmuch as there is only one conveyance) there is consequently no mixture of property." This is not the first time that Abu Haneefa's two disciples have departed from their master and chosen a more enlightened path. We hold that the gift by Yaqut Khan was valid in its entirety and that he had no power to retract it in this case. The three appeals of Aurangzeb and his brothers are accepted with costs, while the appeal of Zebu Nisa and Khursheed is dismissed with costs. A. H. Order accordingly.