1979 PLP 587 (CLC)

10. Another tradition is from Nafe. He stated that Abdullah Bin Umar was the heir of Hafsa, 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. In 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 in greater details. It is stated there that when gifts for lifetime became common to 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 Bin 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 heirs 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 and . . . . . .". 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 heirs, it cannot revert to the donor because he has 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 'Sahib 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 (peace be upon him) has validated that Amra.wbich is made in the following words :- "This is your and your heirs' property" but if 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 lifetime of the donor and thereafter for his heirs, the Holy Prophet has directed 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 Tariq, who, on the evidence of Jabir, decided the matter and sent his recommendation 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, 2979, 2880, 2881 and 2882 are reproduced from Jabir while the 6th one is from Abu Huraira. According to Abu Haraira, 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 validated that Amra is 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 Rikba or Amra and the person to whom Rikba or Amra is given becomes the owner and thereafter his heirs (become owners). The last tradltion 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, Vol. 1, 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 Ibne 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 Shafe 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 Su'fian 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 according 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 Malik interpreted these traditions as meaning that if it is not stated that Amra is for the donee and after him for his hers, the estate will revert after the death of the donee. Imam Sbafe'i also once held the same view as is clearly stated in Minhaj-ul-Talibin. But a different view was taken by Sufian Sa'ori, Imam Ahmad and Imam Ishaq (see Tirmizy) though the latter two contrary to the opinion of Imam 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 considered 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 lifetime 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 aright of residence. In this head may also fall grant of only usufruct or Munafa during lifetime of grantee. These traditions bring into hold relief the distinction between corporeal things and incorpareal rights. The donor may convey the right of property or corporeal right in a specific thing. This is like any other conveyance of B 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 I. 1? 1969 Lah 338) in the judgment of Karam Elahee 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 Muslim 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 (mona6). Over the corpus of the property the law recognizes 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 takes 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 interests 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 property 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. Areoat, on the other hand is defined "as investiture with the use of a thing without C return . . . . . . . Koorokhee and Shafe'i define Areeat 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 without return." The essentials of Areeat are given as follows in Muhammad Sher Khan v. 11st. Niamat-un-Nisa (A I R 1925 Oudh 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 make 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 approved of Amrees (gifts for life), but held the condition annexed to them by the granter 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 therefore, 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 the oomree (for thy age-oomr), or `Hyatee' (for thy 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 areeat, or commodate loan, "I have mounted thee on this beast", which would be a loan, unless gift were intended". Again it is explained 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 principle 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, 'D law defeats not the grant but the condition. (2) If the manifest intention is not to give the corpus "to grant an absolute interest in the property but is only to grant a licence, a right of enjoyment of income, for example, for life or another period of time or subject to revocation, the grant as well as the condition are valid. But difficulties arise in construing a grant. Difficulties can be bridged by adhering to the principle applicable to deeds in general that to construe to ascertain the intention of the donor primarily with the help of the language of the grant and then whenever permissible with the assistance of surroundin circumstances. In the quotation from the Hedaya cited above emphasis has been laid upon the intention of the granter 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 Areeat and by negativing the plea of gift. Amjad Khan v. Ashraf Khan (AIR 1929 P C 149), Bai Saroobai v. Hussain Somji (165 1 C 34), Achiruddin Ahmad v. Sakina Bewa ((1946) 222 1 C 585), Samlr 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 Begum (P L D 1969 Lah. 338) and Murid Hussain v. Mst. Bakhsh Iliahl (P L D 1975 Lah. 1484). The facts in Amjad Khan v. Ashraf Khan were that by a registered deed of gift inter was 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 further 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 property comprised in the deed together with a power of alienation over one-third of the property. In Bai Saroobai v. Hussain Somjl two properties were conveyed by the settlor to the trustee on certain trusts for herself during her life, and after her, for her two daughters (the plaintiffs) and thereafter for their son or sons. It was held that the plaintiff's _had not become absolutely entitled in the property. In Achiruddin Ahmad v. Sakina Bewa 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 :- death, you will, during the period of your life, keep in your own possession the properties mentioned in schedule ka 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 and other sons and daughters as may be born to me out of the womb of my wife shall get the said properties in an absolute right and shall possess and enjoy the same in grant facility 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 v. As (7) 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 A did not, therefore, get an absolute estate under the will. In lnayai Begum v. Mst. Maryam Bibi the settlor made a gift of land in favour of his wife and his three daughters. He made a statement before the Officer attesting the mutation that the four ladies would maintain themselves from the produce of the land until they lived, and if any one 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 Samir Sheikh v. Aijan Bewa 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 Bib! v. Mst. Sofia Begum 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 1llahi 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 Areeat. 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 or merely of usufruct. In Mst. lnayat Begum v. Mst. Maryam Bibi the property was gifted for life P but it further added that the donee would have no right to transfer it during his lifetime 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 dives himself or his children of the ownership of the property but wanted to confer only a right of mesne profits of the property on the donee during hi lifetime. It is for this reason that he had imposed a condition that the done 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 plaintiff's suit. Since a very difficult point was involved in this case, I leave the parties to bear their own costs. Petition allowed.