P L D 1953 Peshawar 1 (PLP)

1. Is the suit incompetent in its present form ?

2. Is the plaint deficiently stamped or jurisdictional value under‑valued or incorrectly assessed ?

3. Did Kazi Mir Alam Khan deceased grant to his four daughters life‑estate regarding the plaint property and with what effect ?

4. Was it arranged that the limited interest of one daughter would go to other on the death of the former, so on till all died, and with what effect ?

5. Did Kazi Mir Alam Khan deceased hold in his lifetime his son Kazi Abdullah Jan, to own the proprietary rights subject to the limited interests of the daughters, and with what effect ?

6. Has Kazi Abdullah Jan sold his such rights to plaintiff, and with what effect ?

7. Has defendant No. 1 executed an agreement, whereby she admitted her limited interests and no right to alienate the property ?

8. If so, has such an agreement been acquired under undue influence or misrepresentation of facts ? .

9. If issue No. 7 is proved, and No. 8 is negatived eventhen the defendant No. 1 is not bound legally to have limited interests?

10. Relief. On issue No. 1, the learned trial Judge came to the conclusion that the suit was competent in its present form, One issue No. 2, he found the Court‑fee to be correct, but so far as the jurisdic tional value was concerned, he altered it from Rs. 5,130 to Rs. 9,

780. He discussed issues Nos. 3, 4 and 5 together, and held that the transfers by different mutations by Kazi Mir Alam Khan to his daughters amounted to gifts, and the conditions attached thereto with regard to the succession and alienation were void. On issue No. 6, he came to the conclusion that Kazi Abdullah Jan was entitled in law to transfer his rights even if they were of a chance of succeeding to an estate to the plaintiff. On issues Nos. 7 and he found that Mst. Maryam Bibi had in fact executed an agreement, whereby she admitted her limited interest in the suit property, and that this agreement was executed freely, and not under any undue influence or misrepresentation of facts, but there was no legal effect of this document. Having found the principal issues against the plaintiff, he dismissed her suit, but left the parties to bear their own costs, The plaintiff has come up on appeal to this Court. It is very unfortunate that the parties or the Court have not cared to bring on the record the present Khasra numbers of the property, which was from time to time transferred by Kazi Mir Alam Khan in favour of his wife and four daughters. It is, therefore, impossible to find as to which particular mutation refers to which particular property. It is, however, obvious that some property situated in Haripur, Sikandarpur and Dheri is the subject‑matter of this dispute. With regard to the property in these three villages, altogether seven mutations were attested. A perusal of these mutations, the details of which are given in the earlier part of this judgment, would show that Mutations Nos. 228, 251, 394 and 416 related to land in Haripur, Mutations Nos. 165 and 398 to that of Sikandarpur, and Mutation No. 288 to land in Dheri. Out of these mutations, in Nos. 228, 165 and 251, it was specifically mentioned that the transferees shall only be entitled to enjoy the fruit of the property till their death, and that the property shall continue to belong to Kazi Mir Alam Khan, and on his death to his direct male descendants. It was further specifically stated that the transferees shall not be entitled to alienate the property without his or his male lineal descendants' permission. In Mutation No. 398, these conditions are not specifically mentioned, but the wood "Guzara" is written therein, from which it can reasonably be inferred that Kazi Mir Alam Khan did not wish to grant an absolute estate in this property either to Mst. Shamas Noor, Mst, Sardar Begum and Mst. Maryam Bibi. On the contrary he wanted to give them a right to enjoy its fruit until death, just as he had done with regard to the property dealt with in the above‑mentioned three Mutations. The transfers by Mutations Nos. 394, 416, and 288 are apparently of absolute gift unattended by any condition or restriction on the powers of the donees to transfer this property to whomsoever and in what ever form they liked. The learned counsel for the respondents, however, wishes us to hold that in spite of the conditions and restrictions mentioned in Mutations Nos. 228, 265, 151 and 398, they should be held as absolute gifts. The conditions and restrictions he argues are against the letter and spirit of Muslim law, and hence void. The learned counsel takes his stand on a statement which is frequently made rather crudely, that under Hanfi law, if any condition is attached to a gift, the condition should always be considered as void and the gift to take effect absolutely. This statement seems to be the outcome of the decisions under the Hanfi law, that if a donor makes a declaration of Hibba, it may be presumed by the use of the word "Hibba" that the donor intended to gift away all bundle of rights, which he possessed in the property transferred, and if any condition or restriction is sought to be annexed to the donee's full ownership in the subject of gift, it shall be ruled out absolutely as being repugnant to the express intention of the donor. In the case under discussion, however, the point in dispute is not whether any conditions or restrictions are intended to be attached to an absolute gift, but the question is whether in Hanfi law, by which the parties are governed, a person is entitled to create life‑interest in certain property in favour of a particular individual with an absolute remainder in favour of himself and his descendants, or to put it conversely, is there any substantive or positive rule of the Hanfi School of Muslim law, preventing, the creation of such an interest in certain property. None has been quoted by the learned counsel, appearing for the respondents at the hearing of the appeal, and we are also not aware of the existence of any such rule. If Kazi Mir Alain Khan had granted the lease of the property in dispute in favour of his four daughters, Mst. Ghulam Illahi, Mst. Shamas Noor, Mst. Sardar Khanam and Mst. Maryam Bibi, and that lease was to subsist till the lifetime of these four girls, no one would have come forward to say that the lease was against any law much less the Hanfi law, even though the consideration was natural love and affection, which is permissible under section 25 of the Contract Act. The creation of the life‑interest is nothing more than a lease of a' certain property, which is to subsist for the lifetime of the lessee. In such a case the owner does not part with the corpus of the property but he only grants to another its use and occupation for a specific period, which, in our view, cannot on "4 any ground be made subject to any legal objection. We quite realize that if a person gifted away the corpus of certain property in favour of another person but attached a restriction thereto that the donee would not be able to alienate it in any way, the restriction would be bad in law and the gift shall operate without the restriction, but where life‑interest in certain property is created in favour of another person, we fail to see why should effect by not given to the clear intention of the donor. In the case before us as would presently be clear, it is not Kazi Mir Alam Khan, who intended to give to the daughters only the life interest, but even the daughters accepted from him only that interest in the property and nothing more. On the 14th of October, 1906, Mst. Maryam Bibi executed an agreement in which she in very clear words stated that she had only been granted a life interest in the property given to her by her father, and that she was not its full owner in any way. Again, when Mst. Sardar Khanam died and Mutation No. 816 was attested on 16th August, 1924, the general attorney of Mst. Maryam Bibi clearly stated before the Revenue Officer that the share of Mst. Sardar Khanam would be mutated in the name of Mst. Ghulam Illahi and Mst. Maryam Bibi, but only till their lifetime. It is clear that if property had been gifted absolutely in favour of the daughter the mutation would have been attested in favour of the legal heirs of Sardar Khanam and not in favour of the surviving sister alone. Then, by Mutation No. 2394, attested on 15th February 1933, Mst. Ghulam Illahi gifted certain property in favour of her daughter Mst. Farakhun Nisa Begum and Kazi Abdullah Jan as the reversioner was made to give his consent to it. Subsequently Mst. Ghulam Illahi died and the mutation of her property in favour of lust. Maryam Bibi (No. 2635) was attested on the 18th of February, 1935. It was specifially mentioned in that mutation that Mst. Maryam Bibi would not be entitled to mortgage or sell the property, but would only enjoy its produce. On 29tb April 1939, Mst. Maryam Bibi sold certain property in Kaka in favour of one Khan Bahadur, and Mst. Inayat Begum, the plaintiff in the present suit, was asked to give her consent to the transaction, who did it by signing the deed and also taking from Khan Bahadur a sum of Ps.

485. Similar consent was accorded by Mst. Inayat Begum to a sale transaction, which Mst. Maryam Bibi entered into on 30th March, 1940 with one Dr. Sher Bahadur. All these transaction and deeds would clearly show that Mst. Maryam Bibi did not consider herself the full owner of the property given to her by her father; she always considered herself to be holding it for life. To give to the donee something which the doner did rot want to give is certainly not conducive to substantial justice. Under the circum stances then it will be a travesty of judgment to hold that in spite of the wishes of Kazi Mir Alam Khan as well as of his daughters, the transactions should operate as gift of the corpus of the property and not only of the life‑interest. We consequently hold that the judgment of the learned trial Court that the gift would operate minus the restrictions and conditions attached thereto is bad in law, and that Mst. Maryam Bibi in the property in dispute has only got a life interest. The only other objection, which has been raised by the learned counsel for the respondents is that the transfer by Kazi Abdullah Jan of his rights in the property in favour of Mst. Inayat Begum amounts only to a transfer of a more expectancy in succession by survivorship and is bad under section 6 of the Transfer of Property Act. In our view, a vested remainder is not a mere expectancy in succession by survivorship, but an interest which is a substantial property liable to attachment and sale. Apart from that, the Transfer of 1'ropcrty Act is not applicable to this Province, and consequently the stringent law created by section 6 of that Act cannot override an established rule of law and equity that any property can freely be transferred by one person in favour of another. Applying the example, which has already been given in this judgment, if a person who grants a perpetual lease in favour of another has got some interest left in the property leased which he can transfer to another person, then why cant a reversioner in the case of a property granted to another for life transfer his interest therein to whomsoever he likes. The learned counsel for the respondents has failed to cite before us any law which would make the transfer of such an interest void and illegal. No other point has been discussed before us. The result of the foregoing discussion is that we partially accept this appeal, set aside the judgment and decree of the lower Court, and grant plaintiff a declaratory decree to the effect that defendant No. 1 could not in law transfer the absolute estate in favour of her daughter Mst. Illam Taj Bibi in the property with regard to which Mutations Nos. 228, 165, 251 and 398 were attested on 24th June, 1889, 8th June. 1889, 27th June, 1891, and 25th February, 1896 respectively, and that the plaintiff who is the owner of the reversionary rights shall not be bound by these transfers after Mst. Maryam Bibi has died, and they would be on the happening of the above contingency ineffective and void. As regards the property with regard to which Mutations Nos. 394, 416, and 288 were attested on 1st June 1894, 29th March, 1895, and 2nd July, 1902 respectively, the gift was that of the absolute estate, and after the death of the donees at different times the property at once 'rested under the Muslim law in the heirs of the deceased‑donee. If the plaintiff purchased the share of anyone of them, she can in law be entitled to bring a suit for possession and not merely a suit for declaration. In any case, it cannot be decided in this appeal as to who on the death of the donees is entitled to inherit the property. The plaintiff's suit consequently with regard to the property dealt with in the above three mutations is hereby dismissed. In view of the fact that difficult questions of law were involved in the case and also an account of the partial success of the plaintiff, we leave the parties to bear their own costs throughout. Orders announced. A. H. Appeal partly allowed.