P L D 1958 (W (PLP)

The above considerations will apply in case the respon dent intends to prove that the transaction which is expressed as a gift in the tamliknama is in reality a sale. But assuming that the document was executed with her approval and that there was no fraud still that would not necessarily debar her from proving that the gift was for consideration. What sections 91 and 92 exclude is evidence as to the terms of a contract, grant or disposition of property. A term is an expression of the will by the person or persons creating a change in jural relationship of the extent and incidents of such change. For the word "incidents" may be substituted "circumstances that affect". A term is essentially an act of the will and not an incident in the outside world with this qualification that the will has to be expressed by words, though the words may not be explicit and the term may only be implied in the words used. When the donor makes a gift intending to recompense the donee, the donor who is creating a change in jural relationship is not by reason of such intention giving any direction as to the nature or incidents of the change. It is not, therefore, a term. Muhammad Ismail Bhatti for Appellant. Aftab Hussain for Respondent. Dates of hearing: 21st and 22nd October 1957. B. Z. KAIKAUS, J.‑-Wali Muhammad, the appellant, and Mst. Anwar Sultana, the respondent, in this second appeal, were husband and wife, having been married sometime in the year 1939 at Calcutta. Mst. Anwar Sultana was a Christian convert to Islam. After the marriage they appear to have lived at Jallo Mor in Lahore District. On the 5th of November 1949, the appellant divorced the respondent and on the 16th of November 1949, by means of a tamliknama, he transferred in her favour a house. The contents of this document will be examined in detail later but briefly they are that after stating that the respondent shall be sole owner of the house the appellant went on to say that he transferred the house to her on condition that she was to occupy it for her life and that in case the respondent became "barghushta" or disobedient to the appellant she would lose her rights in the house. Op. the 27th of May 1950, he executed a deed of revocation cancelling the tamliknama. He then filed the present suit for possession of the house. The allegations in the plaint are that the house had been transferred to the respondent on the condition that she remained obedient to the plaintiff and that as she had been guilty of misconduct the plaintiff was entitled to cancel the deed and take possession of the house. In her written state ment, the respondent pleaded that the tamliknama had in fact been executed in lieu of the cash, ornaments and dower of the respondent which the appellant retained, that it amounted to a sale deed, and that she was not present at the time that the tamliknama was executed and was, therefore, not bound by what was stated in it. She denied at the same time that she had violated even the terms of the tamliknama. She contended that she was the full owner of the house and had not merely a right of possession. She contended too that the condition m the tamliknama enjoining her to remain obedient to the plaintiff even after the divorce was against public policy and illegal. The learned Civil judge who tried the suit came to the conclusion that the tamliknama passed not the usufruct but the ownership of the house itself, that any conditions mentioned in the deed which derogated from absolute ownership were null and void and that there was no right of revocation. On these findings, the trial Court dismissed the suit. On appeal, the learned District judge differed with the trial Court as to the effect of the tamliknama and held that it passed only the usufruct of the property and not the corpus. He held, however, that there was no proof that the respondent had disobeyed the appellant and therefore there was no right of revocation. It was urged before him that the appellant had, apart from the condition of obedience mentioned in the deed, a right of revocation under Muslim Law, because there is a general right of revocation of a gift except in certain specified cases. The District judge repelled this contention on the ground that the deed was not one of gift but one of settlement and, therefore, the principle of revocation was inapplicable. While holding that the respondent was entitled only to a right of residence he agreed with the trial Court in dismissing the suit.

2. Before proceeding to discuss the various points in this appeal, it will be convenient to reproduce the relevant part of the tamliknama. It runs:‑ "Zauja‑am ki talbi par usko tamlik karke iqrar karta hun our likh deta hun keh makan mazkur‑us‑sadar ki wahid malik wa qabiz Mst. Anwar Sultana meri zauja rehegi our chunkeh Musammat mazkur ke mere‑nutf a se koi aulad paida nahin hui, our meii pehli bivi ki aulad maujud hai, mujko our zauja‑am ko yeh andesha hai, keh badd waf at man muqir, Musammat Anwar Sultana ko makan mazkur men se meri pehli bivi ki aulad zabardasti nah nikal deve. Islie main bagharaz dur andeshi wa rafa taanaga ainda makan mazkurus sadar Musammat Anwar Sultana mazkur ke haq men tamlik karta hun. Ab mujhko ya mere warisan ko makan mazkur se koi ta‑aluq our wasta nehin raha, our nah a‑inda ko rehega. Lekan Musammat Anwar Sultana makan mazkurus sadar ko kisi jagah bai ya, rehan, ya hiba ya waqf ya kisi dusri tarah se muntaqil nahin kar sakti. Who sirf haq rehaish makan mazkur men rekhegi. Agar Musammat mazkur mujh muqir se bargashta ho jawe our mere kehne se bahir ho jawe, to bhi woh maltk makan mazkurus sadar nah rahegi. Agar mere nutfa se batan Musammat Anwar Sultana se koi aulad paida ho jawe to badd wafat Musammat Anwar Sultana makan mazkurus sadar ke waris wa qabiz hogi. Makan tamlik shudah par Musammat Anwar Sultana ka qabza pahle se ehala aata hai. Ab uska qabza malikana men baqi rahega. Ab mazkur makan tamlik shudah men khah khud abad rahe, ya kisi dusre ko karaya par dekar amadni karaya wasul karke apne tasarruf men lawe, mera our mere warisan ka koi uzar nah hoga."

3. In the present appeal, learned counsel for the appel lant has argued that the basis of the judgment of the learned District judge is incorrect and I have no hesitation in agreeing with him. The learned District Judge had relied on the definition of `settlement' in the Stamp Act. I do not think that definition is relevant. The simple question is whether the transaction in dispute is a hiba as understood in Muslim Law or not. If it falls within the definition of hiba in Muslim Law, it will be subject to the principle of revoca tion whether it is regarded as a settlement in the Stamp Act or not. A hiba is a gift of the corpus of tangible property without consideration. The learned District judge has not held that there is any gift of the corpus and has found it to be a gift of usufruct but that only makes matters worse. A gift of usufruct is known in Muslim Law as ariyat and while hiba is revocable only in particular cases an ariyat is by its nature revocable. It is sufficient to refer to page 485, of Tyabji (1940 Edn.), where revocability is stated to be one of the incidents of ariyat, and to para. 170 of Mulla where it is stated with reference to Hedaya that ariyat is a licence revocable at the will of the grantor to take and enjoy the usufruct of a thing. The revocability of ariyat cannot obviously be effected by simply calling it a settlement. Even c if the transaction be a settlement either according to its definition in the Stamp Act or according to the ordinary connotation of that term, it will be revocable if it is a hiba or ariyat as understood in Muslim Law and the person creating it is a Muslim.

4. While learned counsel for the respondent is unable to support the decree of the lower Court on the ground on which that Court proceeded, he contends that the transfer in dispute, whether it be found to be a gift of corpus or of usufruct was with consideration and no question of revocability arises. When called upon to point out evidence in support of his contention, he says evidence has been wrongly excluded. The record shows that the respondent wanted to produce oral evidence to the effect that it was on account of the demand of the respondent with respect to her cash, ornaments etc. that the appellant had executed the tamliknama. The trial Court recorded at this stage the following statement of counsel for the defendant‑respondent:‑ "The defendant wants to produce oral evidence in order to prove that after the divorce she made a demand for the return of her ornaments, cash etc. The defendant promised to transfer the house in dispute in lieu of the ornaments, and a few days later, executed the tamliknama and delivered it, representing that it was an absolute transfer of the house, but the effect of the tamliknama is different? The Court then recorded an order to the effect that evidence to prove that the intention of the executant was different from that expressed in the deed of transfer was excluded by sections 91 and 92 of the Evidence Act.

5. While I agree that, so far as the transfer is concerned its nature and extent are to be determined only by the deed which expresses it (unless the other party is entitled tog rectification of the deed), the order of the learned trial Court is open to more than one objection. The first point to be kept in mind is that according to the plea of the defendant this tamliknama had been executed in her absence and, therefore, she was not bound by it. She was not accepting that this tamliknama was executed with her approval. On the other hand, the statement of her counsel shows that she was even pleading the fraud of the appellant, who represented that in fact he had executed an absolute transfer of the house. In order that oral evidence be inadmissible by virtue of section 91, the first requisite is that the terms of the contract, grant or other disposition of property, should have been reduced to the form of a writing. That means in the case of an agreement, that the writing should be either executed by both parties to the agreement or should be executed by one with the approval of the other. The tamliknama was executed only by the appellant, and according to the plea of the respondent, its contents did not have her approval. The representation made to her was that it was a F deed of transfer. If her plea be found to be correct then section 91 would have no application, because it cannot be said that the terms have been reduced to writing. At the same time, it may be that in the present case section 92 is not applicable by reason of its first proviso if the Court comes to the conclusion that in view of the fraud of the appellant the respondent was entitled to rectification of the deed.

6. The above considerations will apply in case the respondent intends to prove that the transaction which is expressed as a gift in the tamliknama is in reality a sale. But assuming that the document was executed with her approval G and that there was no fraud still that would not necessarily debar her from proving that the gift was for consideration. What sections 91 and 92 exclude is evidence as to the terms of a contract, grant or disposition of property. When we say that a gift is for consideration, we are not suggesting any change in the nature or in the terms of the transaction. It is not implied in a gift for consideration that there was an obligation existing in favour of the donee which obligation has, by agreement of parties, been discharged by the gift. A gift for consideration is a pure and simple gift with the additional fact that the donee has already done something for the donor and the intention of the donor is to recompense him for it. That the donor intends to recompense the donee for a beneficial act or a previous gift is not a term of the gift but simply its cause or reason or motive.

7. What I have stated above should be clear, even with out a definition of the word "term". If I were to define the word, I would say a term is an expression of the will by the person or persons creating a change in jural relationship of the extent and incidents of such change. For the word "incidents" may be substituted "circumstances that affect". A term is essentially an act of the will and not an incident in the outside world with this qualification that the will has to be expressed by words, though the words may not be 1 explicit and the term may only be implied in the words used. When the donor makes a gift intending to recompense the donee, the donor who is creating a change in jural relation ship is not by reason of such intention giving, any direction as to the nature or incidents of the change. It is not, there fore, a term.

8. In view of what I have stated above, this appeal has to be accepted and the case has to be remanded to the lower Court to decide the case afresh after settling the question whether the transfer was either a sale or a gift for con sideration after allowing both parties a fresh opportunity for evidence. It shall decide the question of the admissibility of the evidence afresh in the light of what I have stated above. Costs of this appeal shall be costs in the cause. K. M. A. Appeal accepted.