P L D 1965 (W (PLP)

(a) Contract Act (IX of 1872), Ss. 17 (3) & 19‑Gift‑Not a contract‑Principles of S. 19 may nevertheless be applicable even to gifts‑Allegation that promise was made without intention of performing it not established‑Mere failure to perform Promise Not fraud. Shamshad Ali Shah and others v. Syed Hassan Shah and others P L D 1964 S C 143 ref. (b) Muhammadan Law‑

Gift‑Invalid condition attached to gift' Gift to be treated as without any condition‑Gift with condition that donees would marry their sister (an adult) to donor in lieu of land gifted‑Condition being opposed to public policy and good conscience, held, unenforceable Gift allowed to take effect notwithstanding such condition. Mulla's Muhammadan Law, 1961 Edn., S. 164 ref. (c) Transfer of Property Act (IV of 1882), Ss. 52 & 2

Doctrine of lis pendens ‑ Not applicable to any rule of Muhammadan Law‑Muslim donor subsequently filing suit for resuming gift‑Donee, in absence of order of Court to contrary, competent to alienate gifted property during pendency of suit‑ Mulla Muhammadan Law, 1961 Edn., S. 167(4). Bismillah Begum and others v. Tahsin Ali Khan A I R 1930 All. 462 and Ahmad Hussain alias Chhotu Mian v. Kallu Mian Sajhi Firm Sohan Mian Ulfat Mian 117 I C 97 held not applicable. Mulla's "Muhammadan Law", S. 167 ref. This Second Appeal is by the defendants and arises out of a suit instituted by the plaintiff respondent Ghulam Hussain for a declaration that the gift of the land in dispute made by him in favour of the present appellants by means of a registered deed dated the 13th of November 1957 was invalid and not binding on him as it had been obtained by fraud. He alleged that he was the transferee of considerable land under the Rehabilitation Settlement Scheme, that the defendants‑appellants represented to him that he should marry so that he would get an heir for his property, and they offered the hand of their widowed sister Mst. Sharifan if he were to make a gift to them of some killas of his land. He agreed and gifted the land in dispute to them by means of a registered deed, but after the gift had been effected the defendants refused to abide by their promise to marry their sister to him. It was brought out in evidence that he first approached the police authorities and then instituted the present suit on the 30th of April 1958.

2. The position taken up by the defendants was that the land had been gifted to them by the plaintiff on account of the services rendered by them, inasmuch as since Partition the plaintiff had been residing with them and they had been providing him with meals and had been looking after him in every way. They denied that they ever promised to marry their sister Mst. Sharifan to the plaintiff in return for the gift of land. They also asserted that Mst. Sharifan had been married for the last twenty years and that she was not a widow at the time of the gift. They also took up certain preliminary pleas with regard to the non‑maintainability of the suit but they need not be mentioned here as those findings are no longer in issue.

3. On a consideration of the evidence adduced by the parties the learned trial Judge, Mr. Muhammad Amir Malik, Civil Judge of the Fourth Class at Toba Tek Singh, came to the conclusion that there was no promise to marry Mst. Sharifan to the plaintiff, that the gift had been made in lieu of service tendered, and thus there was no question of fraud or undue influence having been exercised by the defendants. He also observed that even otherwise if any such condition of marrying Mst. Sharifan to the plaintiff was attached to the gift, tile condition was null and void and the gift would be valid without the condition. In coming to these conclusions the learned trial Judge took note of the fact, among other things, that out of the four donees only three, namely, Ghulam Qadir, Jalal Din and Muhammad Latif, were brothers of Mst. Sharifan, whereas the fourth namely Muhammad Ibrahim, was not so related to Mst. Sharifan and it was, therefore, not understandable as to how he could have promised the hand of Mst. Sharifan to the donor. On these findings the plaintiff's suit was dismissed.

4. In appeal the learned Additional District Judge of Lyallpur, Mt. Gul Muhammad Qureshi, after a detailed discussion of the evidence of the parties, came to a contrary conclusion and held that the defendants had got the deed of gift dated the 13th of November 1957 executed in their favour by practicing fraud on the plaintiff. He repelled the contention of the defendants that the Lyift could not be revoked for the reason that during the: pendency of the suit they had alienated the land to Ismail who is the father of three of the donees, i.e., Ghulam Qadir, Jalal Din and Muhammad Latif, as in his view the transfer was hit by, the doctrine of lis pendees. On these findings the learned Additional District Judge accepted the appeal and decreed the suit of the plaintiff‑respondent.

5. In the present appeal two main grounds have been advanced by the learned counsel for the appellants: (a) That even on the facts found by the learned Additional District Judge no case of fraud is made out, and at the most it would be a case of a conditional gift where the condition would be void and the gift remain valid, notwithstanding the condition, and (b) that the learned Additional District Judge has erred in holding that the alienation in favour of Ismail is hit by the doctrine of Us pendens as embodied in section 52 of the Transfer of Property Act.

6. As regards the first contention, it may be stated at the outset that the facts alleged by the plaintiff‑respondent do not find any mention in the registered gift deed, Exh. D.

3. In that document the reason for the gift is stated to be the fact that the defendants are, in relationship, nephews of the donor and have been serving him like sons for the last ten years, and accordingly the donor is very pleased with them. The gift deed also recites that a No‑Objection Certificate has been obtained from the Deputy Custodian, Lyallpur, on the 11th of November 1957. It will he seen, therefore, that the allegation of the plaintiff-respondent that the donees had promised to give him in marriage the hand of their sister Mst, Sharifan rests only on oral evidence. Assuming, however, that such a promise was made, and that it was on the basis of this promise that the plaintiff‑respondent agreed to gift the land in question to the present appellants, it is clear that this is not a case of fraud. The two learned counsel appearing for the parties are agreed that the word "fraud", as used in the present context, is to be understood in the sense defined in section 17 of the Contract Act, and for this purpose a reference was made to an observation appearing in the judgment of their Lordships of the Supreme Court in Shamshad Ali Sha and others v. Syed Hassan Shah and others (P L D 1964 S C 143), to the effect that "a gift is not a contract (though in Muslim law it is called a contract) but the principle of section 19 may be applicable even to a gift". Section 17 of the Contract Act defines fraud as follows:‑ " `Fraud' means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:‑ (1) the suggestion, as a fact, of that which is not .true, by one who does not believe it to be true; (2) the active concealment of a fact by one having knowledge or belief of the fact; (3) a promise made without any intention of performing it; (4) any other act fitted to deceive; (5) any such act or omission as the law specially declares to be fraudulent. Explanation.‑--Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence is, in itself, equivalent to speech."

7. It will be seen that the only clause in the above definition which may be attracted in the present case is clause (3), namely, "a promise made without any intention of performing it". Now, in the present case there is no evidence what so ever to show that at the time this promise was made by the present appellants they did not have any ‑intention of performing it. Even in the plaint the only allegation is that after the gift has been made to the defendants, they have now refused to marry their sister Mst. Sharifan to the plaintiff. It seems to me that the allegation contained in the plaint as well as the evidence led by the plaintiff establishes at the most a case of failure, on the part of the defendants, to perform their promise. Thus the facts found by the learned Additional District Judge do not l constitute fraud in the legal sense of the word. The mere denial by the defendants during their evidence at the trial of the fact that their sister Mst. Sharifan was a widow, cannot be used, in my view, to show that even at the time of obtaining the gift from the plaintiff they had a dishonest intention of not sticking to their promise. On this view of the matter the plaintiff's suit clearly has to be dismissed, for he has failed to establish that any fraud was practised upon him by the defendants for the purpose of obtaining the gift in question.

8. However, the further argument put forward by the learned counsel for the appellants is that even if the promise by the defendants be treated as a condition attached to the gift, the condition would be invalid and the gift will have to be treated as valid, without the condition. For this purpose reliance was placed on section 164 of Mulla's Muhammadan Law, 1961 Edition, which lays down that "when a gift is made subject to a condition which derogates from the completeness of the grant, the condition is void, and the gift will take effect as if no conditions are attached to it". It is clear that if the promise alleged by the plaintiff be treated as a condition attached to the gift, then it takes away from the completeness of the‑ grant and accordingly it must be treated as void and the gift must take effect as if the condition was not attached to it.

9. Further, the condition in question relates to a third person Mst. Sharifan who was, according to the averments, a widow at the time the promise was made. Even if the condition be not treated strictly as an agreement in restraint of the marriage or re‑marriage of Mst. Sharifan who was admittedly not a minor at the relevant time, it is clear that the condition amounted to bartering away the freedom of. Mst. Sharifan in lieu of certain land obtained by her three brothers and a fourth man who is not shown to be related to her. Such a condition, resulting in treating Mst. Sharifan as a chattel, who could be sold at the 1 sweet‑will of her brothers, must be regarded as repugnant to public policy and good conscience, and is not a condition countenanced by Muhammadan Law. Mst. Sharifan was not al party to this agreement. For this reason also the condition must be regarded as unenforceable and the gift must be allowed to take effect notwithstanding the condition.

10. Turning to the second contention raised on behalf of the appellants, I find that an application was made in the trial Court on the 13th of March 1961 that the defendants had sold the land an dispute to Ismail and he should be made a party to the suit, but this application was rejected by the trial Court on the 30th of September 1961 on the doctrine of lis pendens. The question is whether the doctrine applies in the present case. The rule as embodied in section 52 of the Transfer of Property Act is that during the pendency in any Court of any suit or proceeding, which is not collusive, and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein,, except under the authority of the Court and on such terms as it may impose: Section 2 of the Transfer of Property Act lays down that nothing in the Second Chapter of the Act shall be deemed to affect any rule of Muhammadan Law. Section 52 occurs in Chapter II of the Transfer of Property Act. It is clear, therefore, that if there is a rule of Muhammadan Law on the point under discussion here, then the principle embodied in section 52 of that Transfer of Property Act cannot be invoked. Section 167 of Mulla s Muhammadan Law deals with the subject of revocation of gifts. Subsection (1) is to the effect that a gift may be revoked by the donor at any time before delivery of possession, the reason for this rule being that before delivery there is no complete gift at all. Subsection (2) thereof lays down that a gift may be revoked even after delivery of possession except in certain cases, and clause (d) of these exceptions relates to a situation "when the thing given has passed out of the donee's possession by sale, gift or otherwise", but this power of revocation is further made subject to the provisions of subsection (4) which reads as follows:‑ "Once possession is delivered nothing short of a decree of the Court is sufficient to revoke the gift. Neither a declaration of revocation by the donor nor even the institution of a suit for resuming the gift is sufficient to revoke the gift. Until a decree is passed, the donee is entitled to use and dispose of the subject of the gift."

11. It appears to me that the provisions of subsection (4) of~ section 167, as reproduced above, run counter to the principle embodied in section 52 of the Transfer of Property Act and for this reason the principle of lis pendens cannot be applied in the present case. This subsection clearly recognizes the power of the donee to continue to deal, with the subject‑matter of the gift as long as a decree is not passed. Accordingly the donees in this case were competent to alienate the property in dispute during the pendency of the suit, as there was no order of the Court to the contrary. The gift could not, therefore, be revoked by the donor for the reason that the thing given had passed out of the donees possession by sale, a sale which was not hit by section 52 of the Transfer of Property Act.

12. The learned counsel for the respondent referred me to some decided cases in an effort to show that the rule contained in section 52 of the Transfer of Property Act was applicable in the present case, but these authorities do not appear to be of any assistance to him, for they proceed on the basis that there was no substantive rule of Muhammadan Law contrary to the relevant provisions of the Transfer of Property Act. In Bismillah Begum and others v. Tahsin Ali Khan (A I R 1930 All. 462), section 53 of the Transfer of Property Act was applied to the transaction before their Lordships for the reason that the provisions of section 53 in no way offended against any rule of Muhammadan Law and use, therefore not inoperative by virtue of section 2 of the Transfer of Property Act. Their Lordships were dealing with the creation of a Muhammadan waqf with the purpose of defeating the creditors of the waqif. They observed that there is no rule of Muhammadan Law which allows an indebted person to make a waqf of his property with intent to defraud his creditors. They also observed that under the Muhammadan Law the Qazi has the power to make the debtor pay all his debts before he maintains the waqf and the rule under which a manager can be appointed by the Judge to realise the rents and profits and to pay the debts is a mere rule of procedure and not of substantive law and, therefore, is not as such enforceable. The same rule was laid down in Ahmad Hussain alias Chhotu Mian v. Kallu Mian Sajhi Firm Sohan Mian Ulfat Mian (117 1 C 97).

13. Fro the reasons given above, I have come to the conclusion that, in the first place, no fraud was practised by the appellants on the plaintiff respondent in the matter of obtaining the gift of land in dispute; that, in any case, the promise to marry Mst. Sharifan to the donor was merely in the nature of a condition which was not enforceable as it derogated from the completeness of the grant and was also against public policy and good conscience; and, therefore, the gift was valid without the condition. Further, the gift could not be revoked by the donor as possession of the land in dispute had passed out of the donees hands by sale to Ismail, and the sale was not governed by the rule of lis pendens as it fell within the purview of subsection (4) of section 167 of Mulla's Muhammadan Law. On this view of the matte, the plaintiff-respondent, was not entitled to any decree His suit, therefore, was rightly dismissed by the learned trial Court. 1 would accordingly accept this appeal, set aside the judgment and decree of the learned Additional District Judge, and restore the judgment and decree of the learned trial Judge with the result that the plaintiff's suit will stand dismissed.

14. In view of the legal questions involved, the parties are left to bear their own costs. K. B. A. Appeal accepted.