1982 PLP 2082 (CLC)

This petition arises from the judgment and decree dated 9th February, 1976, passed by Mr. Muhammad Amir, District Judge, Jhelum dismiss ing the petitioner's appeal against the trial Court's decree dated 27th October, 1975.

2. The dispute between the parties is about ownership of land measur ing 224 Kanals 12 Marlas in village Raryala Biram, Tehsil and District Jhelum. This property was admittedly owned by Nathu. The plaintiff Adalat Khan filed a suit for permanent injunction against Fateh Muhammad son of Nathu petitioner, restraining him from interfering with his ownership and possession of the property on the ground that the same had been gifted by Nathu to his father Allah Ditta but after the death of Allah Ditta donee the defendant‑petitioner who is heir of the donor, in collusion with the Revenue Staff, got sanction Mutation No. 6616, on 5th May, 19'14, in his own name. The defendant‑petitioner contested the suit on the ground that the gift to Allah Ditta was for life and consequently the property reverted after his death to the heirs of the donor. The following issues were framed ;‑ (1) Whether the suit of the plaintiff is not competent ? O. P. D. (2) Whether the suit is mala fide ? O. P. D. (3) Whether the defendant is entitled to special costs under section 35‑A, C. P. C. 7 O. P. D. (4) Whether the plaintiff is owner in possession of the suit land? O. P. D. (5) Whether Mutation No. 646 dated 5th May, 1974 is collusive, fictitious and as such is ineffective against the rights of the plaintiff ? O. P. D. (6) Relief. Issues Nos. 1 to 3 were not .pressed before the learned trial Court ; as such they were decided against the defendant. Issues Nos. 4 and 5 were decided in favour of the plaintiff, with the result that his suit was decreed.

3. The appeal of the petitioner, as stated above, was dismissed by the learned District Judge. 4., The sum and substance of the finding of the learned Courts below is that Nathu had made a conditional gift of the property in dispute in favour of Allah Ditta that after his death the property would revert to the donor's. heirs and that Allah Ditta would not be entitled to sell or mort gage the land in dispute. It was held that ' the condition attached to the gift was void and that Allah Ditta was vested with the property absolutely by virtue of the gift.

5. The learned counsel for the petitioner conceded' that in case of gift of the corpus made subject to a condition of revocability on the death of the donee, the gift would be valid but the condition would be void. But he contended that this principle does not apply where the gift is not of the corpus but is only of a life interest (Omri). In support, of this distinction between the gift of life interest and gift of corpus he relied on Sardar Nawazish Ali Khan v. Sardar Ali Raza Khan (75 1 A 62).

6. Exh. P. 1 is a copy of Mutation of gift No. 342 by Nathu. It appears from column No. 14 that Nathu made a statement before the Patwaii that he had made a gift of 224 Kanals 12 Marlas of land in favour of his sister's son Allah Ditta for life. After the death of Allah Ditta the property would revert to him or his children. Allah Ditta would not be entitled to transfer this property by sale or mortgage. In his statement made on 6th December; 1913, before the Revenue Officer he verified this report. It appears from the copy of Register Haqdaran pertaining to the year 1970-71 that the name of Allah Ditta was recorded as Malak Qabza while the name of the petitioner Fateh Muhammad son of Nathu was recorded as Hissadar Shamilat Deh, Exh. P. 2 is a copy of Mutation No. 646 which was attested in favour of the petitioner on 5th May, 1974. It appears from column No. 14 thereof that it is a mutation sanctioning reversion of the gifted property to donor's son (the petitioner) after the death of the donor.

7. The learned Courts below found this gift to be absolute on the ground that though a reference was made to its being gift of life interest in the statement before the Patwari but this was not stated before the Revenue Officer. I am not in agreement with this distinction since by the statement made before the Revenue Officer, Nathu had verified what be had already stated before the Patwari. In view of this it is necessary to make a reappraisal of the legal position for determining the distinction between the gift of corpus and a gift of usufruct and the nature of the gift made by Nathu.,

8. The books on traditions use the terms `Amra' and `Rikba' while the books on gift use the words `Gift' (habbah) corpus (aien) usufruct ,(muafa) and `arelat' (loan). Out of those terms Amra is something which is given for life. Rikba is explained by the Commentator as a grant which would become absolute if the donor dies before the donee but would revert to the donor the donee dies during his lifetime.

9. There is no Koranic Injunction on the point but there are a number of traditions of the Holy Prophet (Peace be upon him) which lay down the law. Muwatta Imam Malak is the oldest collection of traditions in existence. Under the heading (Al-Qaza fi Al-umra ) there are two clear traditions pertaining to this subject. The first tradition is by Jabir son of Abdullah Ansari, who said that the Holy Prophet (Peace be upon him) declared that Amra is given to another for his personal benefit as well as for the benefit of his heirs, the person to whom the Amra is given becomes its owner and it cannot revert to the grantor. This is also to Sahih Bokharl.

10. Another tradition is from Nafe. He stated that Abdullah Bin Umar was the heir of Ra fsa, the mother of the Momins (Peace be Upon her) who had given her house to the daughter of Zaid for residence during the latter's lifetime. After her death, Abdullah Bin Umar took possession of this house as his own. This event is recorded in Muwatta Imam Muhammad also: 11. 1n Kitab‑ul‑Asar by Imam Muhammad several traditions, all on the authority of Imam Abu Hanifa, are reproduced. The tradition from Jabir Bin Abdullah is greater details. It is stated there that when gifts for lifetime became common in the city of Madina the Holy Prophet (Peace be upon him) ascended the' pulpit and advised the people to keep their property with them and not to ruin it. He said that he who is given Amra becomes the owner of the property given to him as such, after his death it will be inherited by his heirs. The detailed version is also given in Sahih Muslim. Another tradition is from Habib Bin Abi Sabit who stated that he was sitting with Abdullah 146 Umar when an Aarabi came to him and enquired from him regarding the order about Amra. Abdullah Bin Umar told him that it was inheritance of the person in whose occupation it is, viz, whoever is given Amra, his heir will inherit the property, The third tradition is from Hamaad who stated that "Ibrahim said whoever gets property on Amra it is for him for his lifetime and for his heirs after his death arid xxxxx". In "Muwatta Imam Muhammad" the first tradition from Jabir reproduced in "Muwatta Imam Malik" is given in more details and it is to the effect that, whoever gives Amra for the benefit of another and of the latter's hefts it cannot revert to the donor because he had given heritable property. The other tradition about Abdullah Bin Umar occupying the house given for lifetime to the daughter of Zaid Bin Khitab by Hazrat Hafsa the mother of Momins is also reproduced. Though in `Sahih Muslim' is reproduced a detailed tradition from Jabir that a thing gifted for lifetime is for the heirs of the donee, it will not revert to the donor, in another tradition from Jabir it is stated that the Holy Prophet has validated that Amra which is made in the following words "This is yours and your heirs' property" but when it is said that "This is yours for so long as you are alive" it will revert after his death. It is stated in the commentary that Zahri decided according to this tradition. According to another tradition by Jabir, whenever Amra is for life time of the donor and thereafter for his heirs, the Holy Prophet has direct ed that it will vest in the donee absolutely and it is not valid to impose any condition or to make any exception in a Hibba. Lastly, there is a precedent which has also originated from Jabir who said that a lady gifted as Amra her garden to her son who later on died. After the death of the donee her other son claimed the reversion while the son of the deceased donee claimed the property as his own. The mother came up before a liberated slave of Hazrat Usman, namely,.Ghulam 'Iariq who, on the evidence of Jabir decided the matter and sent his recommenda tion to Abdul Malik Bin Marwan, Abdul Malik‑verified the statement of Jabir after which Ghulam Tariq gave the garden to the children of the deceased.donee. In Mishkat five traditions 2877, ‑ 2878, 2879, 2880, 2881 and 2882 are reproduced from Jabir while the 6th one is from Abu Huraira. According to Abu Huraira, the Holy Prophet said that Amra is valid, i.e. gift of property to a person for lifetime. According to Jabir the Holy Prophet said that Amra will be inherited by the heirs of the donee. According to another tradition by Jabir the Holy Prophet said that the person to whom property is given for life becomes the owner thereof and after him his heirs. Amra belongs to the person to whom it is given and does not revert to the donor. It is heritable. According to another tradition, Hazrat Jabir said that the Holy Prophet had validate that Amra in which it is said "it is for you and for your heirs" but when it is said that this is Amra for 'you for so long as you are alive" it reverts to the donee. According to another tradition from Jabir it is said that "do not make gift by Rjkba or Amra" and the person to whom Rikba or Arttra is given becomes the owner and thereafter his heirs (become owners). The last tradition is by Jabir that Amra is valid for those persons to whom it is gifted and Rikba is valid for those to whom it is given. In Tirmizy, Volume t, at pages 470 and 471, traditions 1247, 1248 and 1249 are given. In tradition 1247, it is said that the Holy Prophet said that the Amra is valid for the Amra‑holder or the heirs of the Amra holder. The traditions to this effect originated from Hazrat Jabir, Hazrat Abu Huraira, Hazrat Aisha, Hazrat Amir Moavia and Hazrat lbne Zubair. The second tradition 1248 is from Hazrat Jabir that Amra will not revert if it is given for the benefit of donee or for the benefit of his heirs. It is stated that in some of the traditions it reverts if the names of the heirs of the donee are not recorded and in which it is stated that it is given for life. According to Imam Malik and Imam Shaft if it is not stated that it is for the donee and after his death for his heirs". it will revert. But a different view is taken by Sufian Saori, Imam Ahmad and Imam Ishaq. In tradition No. 1249, it is stated from Jabir that Amra and Rikba are valid for the Amra‑holder and the Rikba‑holder. It is stated that accord ing to the Companions and those who followed, Rikba is to be treated as valid as Amra, Imam Ahmad and Imam Ishaq agree with it. But some of the learned have distinguished between Amra and Rikba and have validated Amra and invalidated Rikba. But Imam Ahmad and Imam Ishaq are of the view that Rikba is also like Amra and belongs to the person to whom it is given and will not revert. The object of these traditions is to declare against the validity of life estates and contingent estates in order to warn the believers against the creation of such estates which had become common in those days it was unequivocally declared that Amra for benefit of the donee and his heirs resulted in complete divestiture of property rights of the donor and created a heritable estate in favour of the donee. According to some traditions Amra vests heritable property in the donee but the words `this is yours for your lifetime' were stated to entail reversion to his heirs after the death of the grantor. The case of Abdullah Bin Omar taking possession of the house as heir of Hazrat Hafsa after the death of daughter of Zaid to whom right of residence was granted is another case of reversion of the property given for life to the heirs of the grantor. But this appears to be a grant of right of residence only. This was the cause of difference of opinion among the great Jurists. Imam Mali k interpreted these traditions as meaning that if it is not stated that Amra is for, the donee and after him for his heirs, the estate will revert after the death of the donee. Imam Shafia also once held the same view as is clearly stated in Minhaj‑ul‑Tafibin. But a different view was taken by Safian Saori, Imam Ahmad and. Imam .Ishaq (see Tirmizy) though the latter two, contrary to the opinion of lmam Abu Hanifa held Rikba also valid treating it to be like Amra. But as discussed in Kitabul Asaar Amra is of three kinds. If the donor says to the donee "This is your house and for your lifetime and after your death it will go to your heirs", this is an absolute gift. The other category is when the owner says to the donee "this is your house for your. lifetime". This is also consider ed to be an absolute gift to the donee. and there is no reversion in it. The third category is of cases Where he says that "this house is your for life time and after your death it will come to me or my heirs". This is also a gift like the first one. According to. Imam Abu Hanifa and Imam Ahmad the condition of the gift is void. It is stated on the authority of Imam Muhammad (in Muwatta Imam Muhammad) that he acted upon the principle that Amra is a gift which is absolute in favour of the donee and the right of residence is by way of Aariyat and the same can revert to the original owner and his heirs. A distinction was thus drawn between Amree or gift of corpus whether for life of the donee subject to reversion to donor or for life of the donee and after his death for his heirs in which cases it would be treated to be a gift absolute with a void condition attached to it and an Ariyat which may be' transfer of a right of residence. In this head may also fall grant of : only usufruct or Munafa during lifetime of grantee. These traditions bring into bold belief the distinction between corpo real things and incorporeal rights. The donor may convey the right of property or corporeal right in a specific thing. This is like any other conveyance of property which renders all conditions repugnant to it as void. There may be other cases in which only a right of enjoyment of the property for a limited period may be conferred, be it a right of residence or right of bringing the usufruct to one's use. The conferment of such a limited interest of beneficial enjoyment out of the estate even though it may envisage dominion over the property is not disallowed. But to be valid it must fall short of right of ownership. This distinction was emphasised in Khan Bibi v. Safia Begum (P L D 1969 Lah. 383) in the judgment of K. E Chauhan, J. (as his Lordship then was) :‑ "The Muslim Law does not recognize the splitting up of ownership of land into estates as under the English Law. In general, Muslin Law draws no distinction between real and personal property. What the Muslim Law does recognize and insist upon is the distinction between the corpus of the property itself (ayn) and usufruct in the property (monafa). Over the corpus of the property the law recogni zes only absolute dominion (heritable and unrestricted in point of time) but interests limited in point of time can be created ,in the usufruct of the property and the dominion over the corpus take effect subject to any limited interests. This distinction runs all through the Muslim Law of gifts‑gifts of the corpus (hiba) gifts of the usufruct (ariyat) and usufructuary bequests. Limited interest in respect of property are not identical with the incidents of estates under the English Law. Under the Muhammadan Law they are only usufructuary interests (and not rights of ownership of any kind). Thus, in English Law a person having interest in immovable property for limited periods of time is said to be the "owner" of the property during these periods. The usufruct is also a part of the corpus. On the other hand in Muslim Law, a person can be said to be an owner' only if he has full and absolute ownership. Ownership for a limited period is not contemplated at all. If the use or enjoyment of pro perty is granted to a person for life or . other limited period such person cannot be said to be an `owner' during that period. The English Law thus recognizes ownership of the land limited in duration while Muslim Law admits only' ownership unlimited in duration but recognizes interests of limited duration in the use of the property." Gift is defined in Hedaya (See Hamilton's Hedaya page 482) as a transfer of a property made immediately and without an exchange. Areiat on the other hand is defined "as investiture with the use of a thing without return Koorokhee and Shafiei define Ariyat to signify simply a licence to use the property of another ". In Fatawa Alamgiri gift is defined as follows :‑ "Law defines hiba as the act of making owners of the substance with out return." The essentials of Areeat are given as follows in "ul:amrnctd .)hcr khan v. Mst. Niamat‑un‑Nisa (A I R 1925 Qudh 289):‑‑ (1) that it can be revoked ; (2) that‑ it cannot be a‑transfer of property ; (3) that it must be for a definite period ; and (4) that it does not devolve upon the heirs of the recipient. The nature of gift is explained in Hedaya at page 488 as follows :‑ " The gift of a thing renders all provisional conditions respecting it nugatory.‑If a person makes a gift of his female slave to another on condition that he restore her to him, or that he emancipate her, or create her an Am‑Walid, or, if a person makes a gift of a house to another, on condition that the donee give back a part of it,‑or if a person make a gift of his house in charity to another on condition that the receiver of the charity give him something in exchange for part of the house,‑such gift or charity .is valid ; but the condition annexed is invalid, because it is contrary to the spirit or intendment of the contract ; and neither gifts nor charities are affected by being accompanied with an invalid condition because the Prophet ap proved of Amrees (gifts for life), but held ‑the condition annexed to them by the grantor to be void,‑It is otherwise in sale ; because. the Prophet has prohibited sale with . an invalid condition ; and also because invalid conditions as being in the nature of usury manifest their effects, in contracts of exchange, but not ‑in such as are not of the description of exchange." At page 489 it is stated that "An Amree, or life grant is lawful to the grantee during his life, and descends to his heirs ,because of the tradition before quoted‑Besides, the meaning. of Amree is a gift of a house (for example) during the life of the donee, on condition of its being returned upon his death. ,The conveyance of the house there fore, is valid without any return ; and the condition annexed is null, because the Prophet has sanctioned the , gift in this instance, and annulled the condition, as before mentioned. ‑An Amree, moreover, is nothing but a gift and a condition.: and the condition is‑ invalid, but a gift is not rendered null by involving an invalid condition, as has been already demonstrated." According to "A Digest of Moohumudan Law" by Baillie, page 507, if it is said "This mansion is to thee oomree (for thy age‑oomr.), of 'Hyatee' (for the life‑Hyat) `and .when thou art dead it reverts to me', "in which case the gift is lawful, and the condition valid." It is then stated that "words which bear equally the construction of the gift and of areeut, or accommodate loan; '‑I have mounted thee on this beast" which would be a loan, unless gift were intended". Again it is explain ed that "A man has dirhems of another in his possession and the owner of them says to him, 'Expend them for your necessities ;" this is a kurz, or Mutuum loan ; but if instead of Dirhems the person had wheat in his possession, and the owner should say, "Eat it", that would be gift". The principles of law as enunciated above from the traditions of the Holy Prophet can be summed as follows :‑. (1) When the intention of the owner‑is to give the corpus of and an absolute interest in the property transferred by gift or amree with a reversion of a limited estate in the same property in favour of another, law defeats not the grant but the condition. (2) If the manifest intention is not to give the corpus "to grant ail absolute interest in the property but is only to grant a licence a right of residence, a right of enjoyment of income, for example, for life or another period of time or subject to revocation, the grant as welt as the condition are valid. But difficulties arise in construing a grant. Difficulties can bridged by adhering to the principle applicable to deeds in general that to construe is to ascertain the intention of the donor primarily with the help of the language of the grant and then whenever permissible with C the assistance of surrounding circumstances. In the quotation from the Hedaya cited above emphasis has been laid upon the intention of the grantor by saying "because it is contrary to the spirit or intendment of the contract". Discovery of intention is thus a matter of primary concern. There are a number of cases which were decided by applying the principle of Areiat and by negativeing the plea of gift. Amjad Khan v. Ashraf Khan (AIR 1929 P C 149) ; Bai Saroobal v. Hussain Somji (165 1 C 34) ; Achiruddin Ahmad v. Sakina Bewa ((1946) 22 1 C 585) ;. Samir Sheikh v. Aijan Bewa (P L D 1956 Dacca 143).) ; Mst. Inayat Begum v. Mst. Maryam Bibi (P L .D 1953 Pesh. 1) ; Mst. Khan Bibi v. Mst. Safia Begurri (P L D 1969 Lah. 338) and Murid Hussain v. Msr. Bakhsh 1llahi (P L D 1969 Lah. 338). The facts in Amjad Khan v. Ashraf Khan (Supra) were that by a regist ered deed of gift Inter vivos the donor (a Hanafi Mussalman) made a gift without consideration to his wife of the entire property detailed therein : he divided the property into two parts, one‑third and two thirds. As to the one‑third, the donee was given "power to make at her pleasure any sort of alienation like mortgage, sale or gift in respect thereof"; and as to the two‑thirds it was provided that "she (the donee) shall not possess any power of alienation but she shall remain in possession thereof for (her) lifetime". The deed farther provided that "after the death of the donee the entire property gifted away by this document shall revert to the donor's collaterals". It was held, on the true construction of the deed as a whole, and giving effect to all the terms thereof, that the intention of the donor was to make and that he did make a gift to his wife of a life interest only in the entire pro perty comprised in the deed together with a power of alienation over one‑third of the property. In Bai Saroobal v. Hussain Somjf (Supra two properties were con veyed by the settler to the trustee on certain trusts for‑ herself during her life, and after her, for her two daughters (the plaintiffs) and thereafter for their sons. It was held that the plaintiffs had not become absolutely entitled in the property. In Achiruddin Ahmad v, Sakina Bewa (Supra) a Sunni Muhammadan made a will bequeathing certain lands in favour of one of his wives A, the relevant provisions of .which ran as follows :‑ "Upon my death, you will, during the period of your life, keep in your own possession the properties mentioned in schedule below which are owned and possessed by me, pay the rent payable thereon and enjoy the produce and profits thereof ; you shall not ever be entitled to encumber or transfer them, but will only enjoy the produce and profits during your life. After your death, my daughter M. and other sons and daughters as may be born to me out of the womb of my wife S shall get the said properties in an absolute right and shall possess and enjoy the same in great felicity from generation to generation through sons, grandsons and other heirs as may come in their place and stead." It was held that both as a matter of construction and on principles of general as well as Muhammadan Law, the bequest to was not merely of the usufruct of the properties during her life but of a life estate. It was also held that the will clearly created a simple life estate, directly and without circumlocution. It was not a case of gift and a condition and did not, therefore, get an absolute estate under the will. In Inayat Begum v. Mst. Maryam Bibi (Supra) the settler made a gift of land in favour of his wife and his three daughters. He 'made a state ment before the Officer attesting the mutation that the four ladies would maintain themselves from the produce of the land until they lived, and if anyone of them died, half of her share would go to the remaining donees. None of the donees were entitled to transfer the property in any form. After all the donees were dead, the property was to revert to the donor, or his male descendants. In these circumstances. It was held that this was a case of life grant and not of transfer of interest in the property. In the case of Santir Sheikh v. Aijan Bewa (Supra) the gift of the land was subject to the condition that the donee should hold the same for her life and after her death it would pass to her heirs. On a construction of the terms of the gift it was held that it was not a gift of an absolute interest with a condition of defeasance but of a limited interest only . In Mst. Khan Bibi v. Mst. Safia Regum (Supra) a settlement (Tamleek) for the life interest for purpose of residence of a house was made in favour of the wife. It was held. that the interest created for the donee was only for her lifetime. In Murid Hussain v. Mst. Bakhsh lllahi (Supra) settlement by way of `Tamleek' was made by the donor upon her wife with the condition that he would have no concern with the income of the property during lifetime of the wife nor the wife would have the right to transfer. This was held to be only a case of Areiat. It would thus appear that each case has to be decided on its own merits and it is the duty of the Court to discover the intention of the donor on the language of the gift whether it was gift ‑of corpus of merely of usufruct. In Msr. Inayat Begum v. Mst. Maryam Bib! (Supra) the property was gifted for life but it was further added that the donee would have no right to. transfer it during his life time and it would revert after her death 'to the donor or his heirs. In the present case, the donor had made a gift of property in favour of his sister's son for life that after .his death the property would revert to him or his children. The donee will not be entitled to transfer, or sell or mortgage this property. This appears to be a case similar to the Peshawar case. I am of the view that if the gift had been only subject to right of reversion without any additional condition in accordance with the uniformity of view about Muhammadan Law it would have amounted to an absolute gift and the condition of reversion would be a nullity. But in the present case the intention of the donor appears to be that he did not wish to divest himself or his children of the ownership of the property but wanted to confer only a right of mesne profits of the property op the donee 'during his lifetime. It is for this reason that he had imposed a condition that the donee would have no right to transfer the property in any manner whatsoever. This appears to be a case of the gift of usufruct only and not corpus.

12. I, therefore, set aside the judgments and decrees of the learned Courts below and dismiss the plaintiffs suit. Since a very difficult point was involved in this case, I leave the parties to bear their own costs. M. Y. M. Petition accepted.