P L D 1955 Lahore 516 (PLP)

MUHAMMAD YAQUB ALI, J.--‑This appeal arises out of a suit filed by Mahram Khan appellant for a declaration that the mortgage of 1413 kanals 4 marlas of land situate in village Dhurnal, District Attock, effected by Baz Khan defendant No. 1 in favour of Aulia defendant No. 3 will not affect his vested remainder in it. His claim in the suit proceeded on the basis of a gift deed executed by Baz Khan on the 9th of January, 1951, whereby he bequeathed the suit land in the first instance in favour of his wife Mst. Bhag Bhari defendant No. 2 and on her death or re‑marriage in favour of Mahram Khan plaintiff. The claim of the plaintiE was denied by all the defendants. It was urged that the plaintiff bad got his name fraudulently entered in the gift deed which was intended to be in favour of Mst. Bhag Bhari alone and as soon as it was discovered, Baz Khan had revoked the gift and got the mutation entered in respect of this transfer cancelled by the revenue officer. The validity of the gift was also challenged on the ground that it was not accompanied by delivery of possession. On the pleadings of the parties a number of issues were framed which it is not necessary to reproduce here, because in this second appeal the main contest between the parties centred round the validity of the gift of vested remainder in favour of the plaintiff. The Courts below here held that the gift was invalid both according to custom and Muhammadan Law because it was not accompanied by delivery of possession, and in any case Baz khan was com petent to revoke the gift because it was not accompanied by delivery of possession. Sh. Bashir Ahmad, learned counsel for the appellant, has not relied upon any rule of custom in support of the validity of the gift in favour of Mahram Khan but he has maintained that such a gift was valid under Muhammadan Law. In support of this contention he has relied on Banoo Begum and other v. Mir Abed Ali and others (I L R 32 Bom. 172), Sardar Nawazish Ali Khan v. Sardar Ali Raza Khan (L R 75 Ind. App. 62) and Achiruddin Ahmad v. Sabina Bewa of another (A I R 1946 Cal. 288). In Banoo Begum's case a Division Bench of the Bombay High Court held that it was possible for a Muslim to create a definite interest like what would be called in English Law a vested remainder. The application of this doctrine was, however, confined to Shia Muslims, because according to the view as held at that time creation of a life estate was not recognized among Sunni Muslims. In fact in the decision of this case an earlier authority of the Judicial Committee which laid down that creation of vested remainder was unknown to Muslim Law was distinguished and not followed on the ground that the parties in that case were Sunnis. In Nawazish Ali Khan's case their Lordships of the Judicial Committee held that there was no difference between the several schools of Muslim Law in their fundamental conception of property and ownership and a limited interest took effect out of the usufruct under any of the schools. On the basis of these two authorities Mr. Bashir Ahmad con tended that since Sunni Muslims are now held by the Judicial Committee to be competent to make a gift in the nature of a life estate, the reason, for which the learned judges of the Bombay High Court had held in Banoo Begum's case that only Shia Muslims could create a vested remainder, had disappeared and it should be held that a vested remainder could be created under any of the schools of Muslim Law. Before dealing with Banoo Begum's case I will first deal with Nawazish Ali Khan's case because in my opinion there are observations made in it by their Lordships which go contrary to the contention of Sh. Bashir Ahmad.One of the questions which arose for the decision of their Lordships in that case was : "Is it competent for a Shia Muhammadan governed by Imamia Law by will to leave property to a person for his life and after his death to such members of a class as such person may appoint? Or, to state the question in more general terms. Does Shia Law recognize powers of appoint ment of a character with which English Law is familiar ?" Dealing with the first part of this question, as noticed above, their Lordships observed that there was no difference between the several schools of Muslim Law in their fundamental conception of property and ownership and a limited interest took effect out of the usufruct under any of the schools, but dealing with the second part of the question their Lordships observed that in general Muslim Law draws no distinction between real and personal property and they knew of no authoritative work on Muslim Law, whether the Hedaya, or Baillie or more modern works, and ‑no decision of the Board which affirms that Muslim Law recognized the splitting up of ownership of land into estates, distinguished in point of quality like legal and equitable estates, or in point of duration like estates in fee simple, in tail, for life, or in remainder. It will be seen that far from supporting the contention of the learned counsel their Lordships have actually held to the contrary, for they say that an estate in tail or in remainder was not known to Muslim Law and even as regards life estate what their Lordships held was that a gift of limited interest could be made out of the usufruct but it was nowhere held that a life estate as known in English Law or Customary Law could be created by splitting up of ownership in point of duration. In BanooBegum's case the parties were Shia and the question which was directly raised for decision in that case was whether transfer of vested remainder was invalid by reason of section257‑A of the Civil P. C. The only ground on which it was claimed that vested interests were incapable of transfer was that they came within clause (a) of section 6 of the Transfer of Property Act. In dealing with this question their Lordships observed that this contention rests on the view that the Muhammadan Law does not recognize a vested remainder, and in support of this, reference was made to Abdul Wahid Khan v. Mst. Nuran Bibi ((1885) L R 12 I A 91). In the opinion of their Lordships the actual point decided in Abdul Wahid Khan v. Mst. Nuran Bibi was as to the construction to be placed on the documents evidencing a compromise, though no doubt their Lordships of the Judicial Committee were influenced in coming to their decision by the consideration that it appeared to them to be opposed to Muhammadan Law to hold that the compromise created a vested interest similar to a vested remainder under the English Law for such an estate, they said, did not seem to be recognized by the Muhammadan Law. Their Lordships dis tinguished that case on the ground that the parties were Sunni and their rights were governed by Hanafee Law, whereas in the case before them the parties were Shias. An earlier decision of the Board in Mst. Hameeda v. Mst. Budlun (17 W R 525) on which reliance was placed in Abdul Wahid Khan v. Mst. Nuran Bibi was interpreted to mean that although their Lordships did not affirm the validity of such a transaction on the facts of that particular case but they certainly did riot discard it as impossible. In coming to the conclusion that such a vested remainder could be created by a Muhammadan, their Lordships relied upon Umes Chunder Sircar v. Mst. Zahur Fatima ((1890) L R 17 I A 201). There a Muhammadan granted property in moburruri to his second wife with the condition that if she should die childless it should go to his two sons by another wife. The second wife had no child. While the grantor was still alive, a decree‑holder attached the interest of one of the sons and after the grantor's death, title and interest of the judgment‑debtor was sold. One of the questions discussed and determined by their Lordships was as to whether the purchaser took anything. It was decided that he did. The entire discussion by their Lordships of the Judicial Committee in this case centred round the nature of the right conferred upon the two sons on the death of the second wife and not on the question of validity of creation of such a right. Their Lordships observed that the interest given to the two sons appeared not to fall within the description of an expectancy or of a merely contingent or possible right or interest. There is no doubt that if such an interest could be validly created, it would amount to a definite interest like what we should call in English Law a vested remainder. But their Lordships of the Bombay High Court drew an inference from this decision that it affirmed the possibility of the creation by a Muhammadan of a definite interest like what we should call in English Law a vested remainder, and that such a remainder though liable to be displaced was not a mere expectancy in succession by survivorship or other merely contingent or possible right or interest, but an interest that could be attached and sold. On these findings their Lordships came to the conclusion that having regard to the fact that the parties were Shias, the six sons took vested interest capable of transfer. With utmost respect to the learned judges who decided this case, I venture to differ with it because the decision in Umes Chunder Sircar's case did not affirm the legality of creation of a vested remainder and the observations in Mst. Hameeda's case and Abdul Wahid Khan's case fully applied to the facts of the case which was under their consideration. In Achiruddin Ahmad's case Chakravarty, J., upheld a gift whereby a Sunni Muhammadan made a bequest to his wife who was to enjoy produce and profit thereof during her lifetime and on her death the property was to go to the other heirs of the testator. The real question involved in the decision of that case was whether the bequest made in favour of his wife Mst. Aziman under the conditions imposed in ‑the will was valid or not, and the question of the validity of vested remainder which arises for decision in the present case did not arise in that case. At page 299 of the report it is observed by the learned judge that "the lands passed in the first instance to Aziman in a life‑estate. After her death, if the vested remainder was invalid, the lands reverted to the heirs of the testator and since Sakina was the only heir at the time, she acquired a 16 annas title, as the lower appellate Court has held. But if the vested remainder was valid, then on Aziman s death, the lands passed to the heirs of Mamena living at the time and since not only plaintiff 1 but plaintiff 2 also is an heir, the two together became owners of the property. If this question had been brought up before this Court, it would have been necessary to decide it. But it has not been brought up and was not raised in arguments". It is conceded by Mr. Bashir Ahmad that there is no original text or any authoritative work which supports his contention that under any of the schools of Muhammadan Law a gift of vested remainder was valid. Therefore, as result of the view which I have formed about the authorities cited by him I have no hesitation in holding that the gift made by Baz Khan in favour of Mahram Khan plaintiff was invalid according to Muhammadan Law. However, if for the sake of argument it was assumed that such a gift was valid, the plaintiff's claim in the suit was liable to be displaced on the ground that so long as Baz Khan had not parted with possession of the suit land in favour of Mahram Khan he was entitled to revoke it at any time. Both the Courts below have come to a con current finding that the donor had not parted with possession of the suit land either before or after the execution of the gift deed in favour of the first donee Mst. Bhag Bhari. In fact she repudiated the gift both in the written statement which she filed in this case as well as in her statement which she made during the trial of this case. In his own statement the plaintiff has himself expressed ignorance of the fact whether Mst. Bhag Bhari was ever put in possession of the suit land or not. It has already been noticed that after the execution of the gift deed Baz Khan got the mutation in respect of it cancelled on the ground that he had revoked it. Faced with this objection Sh. Bashir Ahmad contended that in case of vested remainder the doctrine of delivery of possession to complete the gift did not apply and Mst. Bhag Bhari being the wife of the donor it was not necessary to transfer actual physical possession for completing the gift in her favour. May be that such a gift is valid without the delivery of possession because in the very nature of such a transaction in which the gift is to take effect after the termination of the limited interest created in favour of the first donee it is not feasible that the gift should be accompanied by delivery of possession but it does not detract from the proposition well established in Muslim Law that the donor can revoke the gift before delivery of actual physical possession. Accordingly as if the gift made by Baz Khan in favour of Mst. Bhag Bhari and the plaintiff was valid under Muhammadan Law the donor remained vested with the authority to revoke this gift so long as he had not parted with actual physical possession in favour of the donees. This appeal is, therefore, dismissed with costs, but on the request of the learned counsel for the appellant I grant leave to file a Letters Patent against this judgment. A. H. Appeal dismissed.