P L D 1950 Peshawar 45 (PLP)

Sardar Ahmad and Mumtaz Ahmad appealed against this order, the learned lower appellate judge agreed with the executing Court that the gift deed was implicitly intended to defeat the right of Mst. Zamroot Jan. He however disagreed with the trial Court that Mian Muhammad was not of disposing mind at the time of the execution of the gift deed. Since he agreed on the first point with the executing Court he dismissed the appeal with costs: Sardar Ahmad and Mumtaz Ahmad have come up on further appeal. It may be stated at the outset that the learned counsel appear ing for the respondent did not ask me to disturb the finding of the learned Additional Judge on the second point. I have, however gone into this question and I find that the decision of the learned lower appellate Court, that Mian Muhammad at the time he executed the gift deed was of disposing mind, is correct. There is no evidence on the record to show that Mian Muhammad was at the time suffering from any such illness, which it was highly probable would issue fatally. He developed paralysis in 1943, and died in 1945, and there is no evidence on the record to show that he died of paralysis I, therefore, uphold the finding of the learned Additional judge' that Mian Muhammad was not suffering from any' such malady, which can be called death‑illness: when he excepted the gift deed, It is urged in appeal that there was no proof 'on the record to show that Mian Muhammad's intention in gifting his property‑: in favour of his grandsons was to defeat the claim of Ms,' Zamroot Jan: The executing Court did not discuss the evidence at all. All that it said in its order was that it had carefully scrutinized the evidence, and had come to the conclusion that the gift deed was executed to defeat the creditor's claim. Mst. Zamroot Jar herself, did not come into the witness‑box. She produced Muhammad Ayub and Faqir Muhammad, the latter being the sister's son of Mian Muhammad, as her witnesses, and none of them stated that Mian Muhammad's intention in giving away his property to his grandsons was to avoid the payment of Mst. Zamroot Jan's debt. There is no allegation, much less a proof of the fact that before Mian Muhammad executed the gift deed, Mst. Zamroot Jan had made any demand of her debt. The learned Additional Judge also ignored the entire evidence produced in the case. He found that Mian Muhammad wanted to harm Tila Muhammad, whom he detested, and it, therefore, as the learned Additional judge himself puts it, " follows imperceptibly that the gift was also intended to defeat the right of Mst. Zamroot Jan for the recovery of her dower amount by snaking the gift of the house which was the only immovable property that was owned by Mian Muhammad." Incidentally, it may be mentioned here that the learned Additional judge is wrong when he says that the attached house was the only immovable property that Mian Muhammad owned. It is clear from the gift deed that he also owned a Serai and another house, although it is correct that he gifted away his entire immovable property in favour of his grandsons. The law which the learned Additional judge has quoted in his judgment boy referring to para. 119 of the Principles of Muhammadan Law by D. F., Mulla, and para. 359 of Tyabji 's Muhammadan Law, that when a gift is made with intent to defraud the creditor of the donor it is voidable at the option of the creditor is indisput able, but it has been misapplied to the facts of the present case. The learned Additional judge seems to have himself, realized that in retaking the gift of his property, it was not the intention of Mien Muhammad to defeat Mst. Zamroot Jan's claim, and that is why he has used the word " imperceptibly" by which in all probability he means either " without realizing it" or indirectly.." The learned Additional judge seems to have been led away by the solitary fact that when Mian Muhammad executed the gift deed, he owned, some debt to Mst. Zamroot Jan. It is wrong to attribute the intention of defrauding the creditors to a certain person, simply because when he executed the gift deed, he owed some, money to one or different individuals The person challeng ing the gift deed on account of that fact must bring some more material on the record to prove the guilty intention of the donor besides the fact that he was under debt at that time. This is clear by the latter part of para. 119 of the Principles of Muhammadan Law by D. F. Mulla. The counsel on both sides have referred to different authorities under section 53 of the Transfer of Property Act. The Transfer of Property Act itself does not apply to this part of the country, but its principles have been made applicable on the grounds of equity and good conscience. The authorities quoted by the learned counsel for the respondent have no bearing on the facts of this case. I consequently hold that the finding of the two Courts below that Mian Muhammad's intention at the time when he executed the gift deed was to avoid‑the payment of Mst. Zamroot Jan's dower‑money has not been proved by any evidence in this case. The gift deed however, in my view, is bad on account of the fact that in executing it, Mian Muhammad wanted to disinherit Tila Muhammad rather than give away the property to his minor grandsons. It is also bad on account of the fact that it is not a completed gift. A reference has already been made to the contents of the will, which Mian Muhammad, made on the 12th of June 1943, seventeen days after the execution of the gift deed, in which he made it perfectly clear that he was extremely annoyed with Tila Muhammad and did not want him to inherit any of his property. Muhammad Ayub, who had been working with Mian Muhammad, and Faqir Muhammad, the sister's son of Mian Muhammad, the decree‑holder's witness have specifically stated ion solemn affirmation that Mian Muhammad executed the gift deed in order to disinherit his son Tila Muhammad. There is no reason why should Faqir Muhammad favour Mst. Zamroot Jan more than his cousin's sons, the two grandsons of Mian Muhammad. The statements of these witnesses are materially corroborated by what Mian Muhammad himself said about Tila Muhammad in the will. The, evidence, produced by the judgment‑debtors, also corroborates, though not directly, the statements of these witnesses. They produced Mst. Sifat Jan, Mirza Abdul Hakim, Gul Muhammad, a brother of Mian Muhammad. and Mst. Amir Begum, the mother of the two minors, Mst. Sifat. Jan stated that Mian Muhammad disinherited Tila Muhammad, because the entire immovable property had been purchased with the earnings of Agha Muhammad, which Obviously is incorrect, because‑Mian Muhammad himself stated in the gift' deed that the immovable property was not only acquired by him, but was also constructed by him at his own expense. Mirza Abdul Hakim, a deed writer, stated that Mian Muhammad made the gift of his property, because he wanted to disinherit Tila Muhammad, Gul Muhammad, the brother of Mian Muhammad, also said in his evidence that Mian Muhammad disinherited Tila Muhammad, because he had already given him enough. It is significant than none of these witnesses, nor Mst., Amir Begum alleged that Mian Muhammad gifted the property in favour of his grandsons as a token of his love and affection, or for their maintenance and education. An intelligent study of the Muslim Law regarding the testamentary disposition possessed by a Muslim will show that it is the policy of the Muslim Jurist to prevent any inter ference with the course of devolution of property amongst the testators' heirs as laid down in the Holy Quran. The law would be the same if a certain transaction, though on the face of it, a gift, is in fact a device to deprive a lawful heir of his share in the property. No person can be permitted to defeat the object of Muslim Law by entering into such colourable transactions. It is an admitted principle of law that a gift intended to defeat or defraud the creditor is voidable. On the same principle a gift intended to disinherit an heir would be a sham transaction, and, therefore, nugatory. The gift in order to be effective should be a genuine transaction and not merely, a plan to achieve some ulterior object. It is true that the necessary effect of almost all the gifts will be disinheritance of one or the other of the heirs of the donors, but then it should be the effect and not the real object of the gift. If the real object of the gift is' disinheritance of an heir, it will be, in my opinion, bad in law. This view to some extent gets support from Chaudhri Mehdi Hasan and others v. Muhammad Hasan, decided by their Lord ships of the Privy Council and reported in 28 All. (I L R) page

439. In. this case a gift deed was held to be fictitious and benami, and therefore invalid and void. During the course of the judgment their Lordships observed as under :‑ " By the Muhammadan Law (by which the present case is governed) a holder of property may in his lifetime give away the whole or part of his property if he complies with certain forms but it is incumbent upon those who seek to set up such a transaction to show very clearly that those forms have been complied with. It may be by deed of gift simply, or by deed of gift coupled with consideration. If the former, unless accompanied by delivery of the thing given, so far as it is capable of delivery, it is invalid. If the latter (in which case delivery of possession is not necessary), actual payment of the consideration must be proved, and the bona fide intention of the donor to divest himself in praesenti of the property, and to confer it upon the donee must also be proved.'' The learned counsel for the appellants has cited 11 Moore's Indian Appeals page 517 (Nawab Umjad Ally Khan v. Mst. Mohumdee Begum and others). This case has absolutely no relevancy to‑the facts of the present case. It was a case where a father of the Shia sect had gifted Government Pro missory Notes. to his son. The gift was accompanied by delivery of possession and transfer into the son's name. Them' Lordships held that the law of succession ab intestato applies only to the assets which constitute the succession. 55 Bom. (I L R), page 238 has also been cited by the learned counsel for the petitioner. In this case also the intention of the donor was to disinherit one of his sons, but then the gift was completed by the delivery of possession to the donee, and their Lordships held that the gift was perfectly a valid document. They did not get into the question whether if the intention of the donor was to disinherit a particular person, the gift would still be valid or void. Apart from the fact that it is abundantly clear on the record that the real object of Mian Muhammad in executing this gift was to deprive Tila Muhammad of his legal share in his property after Mian Muhammad's death, there is overwhelming evidence to show that the gift was imperfect, and Mian Muhammad did not divest himself in praesenti of his ownership in the subject‑matter of the gift, In the gift‑deed just at the end it is noted that the property was being gifted to the minors through one Muhammad Ayub. There is nothing on the record to show as to who this Muhammad Ayub is. No effort has been made to 'produce this person in the witness‑box to show that he took the possession of the property from Mian Muhammad on behalf of the minors after the execution of the gift‑deed. There is no other evidence produced to show that Mian Muhammad handed over the possession of the gifted property to anyone for the minors. Normally, Mian Muhammad being the grandfather was the natural guardian of his minor grandsons and it was not necessary for him to hand over the possession of the property to the minors, but then he himself chose to name a person, who was to do the needful in order to complete the gift. Under the circumstances it was necessary that he should have handed over the possession to that person. The evidence that Mian Muhammad after the gift left the house and started living with his brother Gul Muhammad is to say the least absolutely unreliable. It has been stated by Gul Muhammad, the judgment debtors' witness, and admitted by Mst. Amir Begum, their mother, in their respective statements that Tila Muhammad died in his paternal house, which shows that Tila Muhammad continued to live in one of the two gifted houses until his death. If the gift were a completed transaction Tila Muhammad would have been the first person who would have been turned out of the house and not Mian Muhammad. Faqir Muhammad, the decree. holder's witness, has stated with regard to the other property that he used to realize its rent for Mian Muhammad, which shows that Mian Muhammad remained in possession of the entire property even after the gift. The judgment‑debtors have made no effort to prove that they or anybody case on their behalf recovered the rent of the gifted property. Mst. Amir Begum in her statement said that Abdur Rahman, brother of Faqir Muhammad, used to collect rent for the minors. Abdur Rahman has not been put into the witness‑box. So the only evidence on the point is the state ment of Faqir Muhammad P. W., which, as has already been remarked, I have no reason to disbelieve. The result is that I hold that the gift deed, dated 24th May '1943 was executed with the sole object of disinheriting Tila Muhammad, and was not completed by handing over the possession of the property to the minors or to Muhammad Ayub, named in the deed. Consequently I uphold the orders of the two Courts below, though on different grounds, and reject this further appeal. As the question involved in this case is a difficult and complicated one. I leave the parties to bear their own costs throughout. Orders announced. K. M. A./A. H. Appeal rejected.