(1) (1967) 65 1 T R 34 (PLP)

MUHAMMAD YAQUB ALI, J.‑The question raised in this certificated appeal from the judgment and decree of the High Court of West Pakistan is whether gift of immovable pro perty by a Muslim in favour of his grandsons can be retracted. In other words are the grandsons within prohibited degrees of the donor in which case "retraction" is not permissible. The relevant facts are these : Yakut Khan of village Rustam, district Mardan, made a gift of 726 Kanals and 8 Marlas of land to Aurangzeb, Muhammad Sher and Bakhat Jamal, the respondents 1 to 3 herein, the sons of his prede ceased son Masud Khan which was evidenced by a mutation entered in the revenue papers on the 25th May 1949, and attested on the statement of Yakut Khan on the 4th August the same year. Aggrieved by the gift Daud Khan the other son of Yakut Khan, appellant herein, preferred an appeal from the mutation of gift in the Court of the Collector, Mardan, claiming that he was co‑donee with the grandsons to the extent of one‑half of the land. Yakut Khan supported the appeal and thereby retracted his consent to the extent of one‑half of the gifted land. The appeal failed on which Yakut Khan filed the present suit for a declaration to the effect that the gift to the extent of one‑half of the land in favour of his grandsons was not binding on him. The claim proceeded on the ground that he had not delivered possession of the land and was subjected to fraud and undue influence in consenting to the conveyance of the whole of the land at the time of the attestation of the mutation. Two days after the institution of the suit Yakut Khan died and was replaced by Daud Khan as plaintiff while Mst. Zebunnissa, the widow of the deceased and Mst. Khurshid, his daughter, were joined as defendants 4 and 5 in the suit. The grandsons contested the suit and the trial Court upheld their pleas that Yakut Khan was not subjected to fraud and undue influence and that the gift made by him was of the whole property, but it was held that the donor had power to retract and had retracted in respect of one‑half of the land. A decree for possession of one‑half of the gifted land was accordingly passed jointly in favour of Daud Khan, Mst. Zebunnissa and Mst. Khurshid. On appeals filed by the three sets of parties, viz., (i) Daud Khan, plaintiff ; (ii) Aurangzeb and his brothers, defendants 1 to 3 ; and (iii) Mst. Zebunnissa and Mst. Khurshid, defendants 4 and 5, the District Judge upheld the findings of the trial Court, but amended the decree and allowed separate possession of 3/24 share to Mst. Zebunnissa, 7124 share to Mst. Khurshid and the remaining 14/24 share to Daud Khan. A further appeal filed by Daud Khan in the High Court was dismissed in limine by Muhammad Shafi, J. on 13th February 1954, but another appeal filed by Mst. Zebunnissa and Mst. Khurshid laying claim to a share in the remaining one half of the gifted land and the appeal filed by Aurangzeb and his brothers claiming the whole of the gifted land were admitted subsequently by another Bench and disposed of by the judgment in appeal before us. The High Court held that as the grandsons were within the prohibited degrees Yakut Khan was not competent to retract the gift and reversing the judgments and decrees of the Courts below allowed the appeal by Aurangzeb and his brothers and dismissed the suit in toto. The value of the subject‑matter of the suit and appeal being more than Rs. 15,000 an appeal lay as of right to this Court under Article 158 of the late Constitution of 1956. In pursuance to it Daud Khan alone filed this appeal which was declared to be admitted on the 7th day of November 1958. The grounds urged in support of the appeal are that the gift was obtained by the grandsons by the practising fraud and undue influence on Yakut Khan and that in the alter native the gift in respect of one‑half was duly retracted by him. The first ground is concluded by concurrent findings of fact and we seen reason to differ with the Courts. below at this late stage. The second ground, however, consideration in this the question raised being of first impression Court. The admitted position is that a gift in favour of a re lation within prohibited degrees cannot be retracted. Hedayal page 486, Col. lI, Mulla S. 167, Baillie P. 534, Amir Alil Vol. I, P. 122 (second edition), Fatawa‑i‑Alamgiri, Vol. 7, P. 94, Urdu translation. The orthodox view is that the term "Mahram" (prohibited) applies to persons related through blood and who are neither (sharers) nor (residuaries). The grandsons being the gift in their favour could thus be retracted, but for the reasons given below the learned Judges did not agree with this view. .We think the Courts below have a mistaken notion of the term "prohibited degree" when they hold that grandsons are not within the prohibited degree of relationship in respect of their grandfather. For an explanation of this term we have been referred by both parties to the text of Durrul Mukhtar, reproduced in its Urdu translation by Maulvi Khurram Ali, Volume III, page

504. We reproduce first the Arabic Text : "And Qaaf means qarabat (kinship) ; so if the donor gifts to his qarabatdar (kindred) who is a Muharem‑1‑nasabi (prohibited by reason of blood relationship), even if the donee is a zimi or must'man, he shall not retract." The translator then adds : "Muhram means a person with whom marriage is prohibited. The fact that the word muhram is qualified here by nasabi, indicates that muhram‑i‑raza'i is excluded from this retraction. In other words, the prohibited person referred to here such person as if prohibited by reason of blood relationship, not by reason of fosterage. Thus, although a foster‑sister is pro hibited in marriage, a gift in her favour may be retracted. The text then continues thus "Andy if the donor gifts to a prohibited person with whom he had no kinship, like a foster‑brother, even though he is the donor's uncle's son,‑‑‑ ‑ ‑‑‑he can retract." The words which denote the prohibited degree of relation ship are (the prohibited person who is related). The use of produces relationship by blood and ex cludes foster‑relationship. Thus, in order that retraction of an otherwise valid gift should become impossible, two conditions are necessary. First, the donee must be prohibited in marriage; secondly, he must be related by blood. Now when the text of Durrul Mukhtar speaks of prohibited relationship, it makes no distinction as to sex and it is only rational that if the two parties the donor and the donee . . . . . . belong to the same sex, the sex of one of them should be altered so as to ascertain whether the relationship becomes forbidden in marriage. Thus, in the present case, if the grandfather is changed to grandmother, or the grandson to granddaughter, the prohibition becomes apparent. This seems to be elementary, for it is impossible to conceive of marriage between a male and a male, or between a female and a female. The argument that a grandson is not within the prohibited degree in respect of his grandfather makes it possible to conceive of marriage between a grandfather and his grandchildren; which is absurd. The term is used in respect of gifts merely to describe a relationship conveniently. In the illustration given above in Durrul Mukhtar, the donee is a foster‑brother and the donor is also a male person, for if the donor had been a female, the verb used would be not . The same indifference to sex will be noticed in another instance on the same page "If he gifts an indivisible object", such as a cup or a mill, adds the translator, "to his brother and a stranger, and both take possession thereof, the donor can retract (the gift) in respect of the stranger's share by reason of the absence of a prohibition." Here again, the verb wahaba indicates the donor to be male person, and the prohibited indicted is in pest of his brother, At page 96, of the Fatawa‑i‑Hindiyya, which is an Urdu translation of Fatawa‑i‑Alamgiri by Maulana Sayyad Amir Ali, the following illustration occurs "If a harbi (a person belonging to a country with which we are at war) is permitted to come to our country and he has a Muslim brother here, then if either of them makes a gift to the other, he cannot revoke it." Here again, both the donor and the donee are male. In Hamilton's Hedaya, page 486, Col. 2, it is stated that one reason why a gift to a kinsman within the prohibited degree cannot be resumed is that "the object of the gift is to increase the ties of affinity, which is thereby obtained," and naturally those ties would snap by revocation. It would be remarkable, indeed, if, in similar circumstances, the ties of relationship were to snap in the event of revocation by a grandfather in respect of his granddaughter, but remain whole in the event of revocation in respect of his grandson." On the basis of the orthodox definition of "muhram" viz., heirs of the deceased related to him through blood and who can be included neither among (sharers) nor I (residuaries) it was contended that a son as a residuary and a father or grandfather as a sharer fall out of the term Zi‑Raham. The contention was ruled out by the learned Judges on the view that the concept of (0...) cS3 for the purpose of the law of inheritance is based on its distinction from the two other terms and while in the texts relating to gifts the term is used literally and has been translated as . It was concluded that if the contrary view was accepted the best part of the relations within the prohibited degrees will be excluded from the benefit of irrevocability which was opposed to reasons as well as commonsense. For example, there would be no logic in extending the benefit to a mother‑in‑law, but withholding it from a mother. The learned Judges observed : "If irrevo cability is a virtue attendant on nearness of relationship, as indeed it is, it should be practised more in favour of a mother‑in‑law." The second contention raised in support of the appeal in the High Court was that as Aurangzeb and his brothers were minor and as wards of Yakut Khan it was permissible for him to revoke the gift in their favour. Reliance was placed in this context on the following passage from Hamilton's Hedaya Grady's Edition, page 485 "It is lawful to a donor to retract the gift he may have made to a stranger. Shaf'ei maintains that this is not lawful; because the Prophet has said, `let not a donor retract his gift, but let a father, if he please, retract a gift he may have made to his son ;' and also because retraction is the very opposite to conveyance‑‑‑and as a deed of gift is a deed of conveyance, it consequently cannot admit its opposite. It is otherwise with respect to a gift made by a father to his son, because (according to. 414 toppte) the couveyance of property from a father to a son can never be complete ; for it is a rule with him that a father has a power over the property of his son. With respect to the tradition of the Prophet quoted by Shafei, the meaning of it is that the donor is not himself empowered to retract his gift, as that must be done by a decree of the Kazee, with the consent of the donee, excepting in the case of a father, who is himself competent to retract a gift to his son, when he wants it for the maintenance of the son." The view that a father may retract a gift he may have made to his son was disputed by the learned Judges for the following reasons "It is evident, however, that this is the view of Shafei, and if Shafei's view is accepted, then there can be no retraction except by a father in relation to his son. Firstly we cannot carry the argument to a grandson ; secondly, the rule with him (Shafei) that a father has power over the property of his son" is an unorthodox rule and is meaningless in modern context, when, for instance, it is applied to the self‑acquired property of a son. It would mean that a father could gift away or sell the self‑acquired property of his son. Thirdly, the author of Hedaya under stands the tradition of the Prophet quoted by Shafei to mean that the donor can retract his gift only through a Kazee's decree . . . . . " excepting in the case of a father, who is himself competent to retract a gift to his son when he wants it for the maintenance of the son". In other words, it is only if the father wants the property for the son's maintenance that he can retract the gift without the intervention of the Kazee. Perhaps the reason why the author of Hedaya thus interprets the Prophet's tradition also, quoted at page 486, second column, under the title "A gift to a kinsman cannot be resumed". We do not know what Shafei has said about this tradition, or would have said if he were confronted with it. But if he had said with the learned Judge in A I R 1936 Pesh. 208 that a son is not a prohibited relation, than a gift to a daughter at least would not be retractable. But then what would happen to Shafie's own argument in favour of retraction that a father has a power over the property of his son ? Would he say that there is no power over the property of his daughter ? "It is curious", says Wilson in his Anglo‑Muhammadan Law (6th edition, page 430), "that the one case in which Shafei allows revocation is included among those in which the Hanafis disallow it, namely, gifts to relations within the prohibited degrees among whom `children', how‑low‑so ever are expressly mentioned. "He refers to Baillie, 525." In the above view it was held that the gift by Yakut Khan was valid in its entirety and that he had no power to retract from it. The appeal by Aurangzeb and his brothers was accordingly accepted and the appeal of Mst. Zebunnissa and flourshid dismissed. We have carefully examined the reasons on which the High Court decision is based and agree with the view that a gift in favour of a grandson cannot be retracted. No Quaranic text exists on the point while there are two opposite traditions mentioned in Hedaya at page

486. In this state of the law the learned Judges properly resorted to Qiyas and concluded that as the reason why a gift to a kinsman within the prohibited degree cannot be resumed is that "the object of the gift is to increase the ties of affinity which is thereby obtained" the term prohibited degree should be con strued as otherwise the best part of the relations within the prohibited degree will be excluded from the benefit of irrevocability, a result neither based on reason nor on commonsense. There was also no logic in extending the benefit to a mother‑in‑law, but withholding it from a mother. The basis on which the learned Judes have differed with Imam Shafei on the retractability of a gift in favour of a son or a ward has also considerable merit. As reasoned by them the exception in case of a son appears to be based more on the authority of the father as a natural guardian to deal with the property of his minor son than on the concept of retractability of a gift for a father is responsible for the maintenance of only his minor children and not adults. This view is in conformity with Shia Law that a gift to ones descendants and accepted by them is irrevocable and finds support from the tradition "when a gift is made to a prohibited relation it must not be resumed", the term prohibited in this context being construed as and not the persons with whom marriage is prohibited. No authority or text to the contrary was cited from the bar by the learned counsel for Daud Khan. The appeal is accordingly dismissed, but in the circumstances of the case we make no order as to costs. S. A. H. Appeal dismissed.