MUHAMMAD ASGHAR MEHDI Versus MST. NUR BEGUM
1. Muhammad Asghar Mehdi, plaintiff-appellant, filed a suit for a declaration to the effect that the gift of the suit land made by Ali Muhammad, the second respondent, in favour of his daughter Mst. Noor Begum, the first respondent, as per mutation No. 580 attested on the 17th of July 1962, was ineffective against the reversionary rights of the plaintiff. The suit was resisted on all grounds and the trial Court finding that the gift was a khanadamad gift and had been validity made dismissed the suit. The appellant has remained unsuccessful in his appeal before the learned Additional District Judge.
2. The findings of the Courts below as to the validity of the khanadamadi gift are challenged by the appellant on three-fold ground First, that no intention to take Fazal Ali, the husband of Mst. Noor Begum, as a khanadamad was expressed by the donor Ali Muhammad at the time of marriage, secondly, that the donee has not been put in posses sion, and thirdly, no services are shown to have been rendered by the donee to the donor.
3. All the three objections are interlinked and I propose to deal with them together. Learned counsel for the appellant has referred to an old edition of the Riwaja-i-Am of the Gujrat District prepared by Mr. H. Davis in 1892 and reliance has been placed on Question No. 10 and the Answer thereto, which read as under :-
2. "Q. 10-Can a land-owner, who has no male issue, transfer his property verbally, or by deed, or by giving possession without the consent of his collaterals ?
3. A. 10.-By Rajputs of Tahsil Kharian and Phalia. A land-owner cannot under any circumstances give his daughter a share in his property.
4. By all other Muhammadans-
5. If the land-ownes puts the daughter with her husband in possession of the land either verbally or by deed, then the daughter and the daughter's children will, after the death of the land-owner become owners of the property. There is in such case no necessity for consent of collaterals and more especially if the son has been put in as a ghar jawai.
6. By Hindus-
7. If the land-owner adopts the daughter's son, the adopted son will inherit, otherwise a daughter's children cannot inherit."
8. Para. 16 of the same compilation may also be reproduced with advantage
9. "16. The General custom which appears to have been established by the above cases, taken in connection with the entry in the Riwaj-i Am, is that among Muhammadans of the Gujrat District, with certain special exceptions, to be hereafter mentioned, a sonless proprietor has power to transfer, during his lifetime, his property by gift to his married daughter. But to make such a gift valid, the daughter and her husband must after marriage reside in the donor's house, and must be put in possession of the land. In such case a written deed-of-gift does not appear necessary nor is the consent of the collaterals obligatory; though in the absence of a deed, it would be necessary to show that the intention of the proprietor was to establish her (sic) daughter's husband as khanadamad."
10. In the subsequent Riwaj-i-Am prepared in 1922 by Mr. H. S. Williamson, questions Nos. 65, 67 and 126 are relevant for the purpose and are reproduced below for ready reference
11. "Q. 65.-Does the custom of khanadamadi prevail in the tribe ?
12. A. 65.-The custom of khanadamadi prevails in every principal tribe of the district.
13. Q 67.-Is it necessary that the 'khanadamad' should reside entirely in his father-in-law's house ?
14. A. 67.-Yes, but it is not necessary that the residence should have begun immediately after marriage, and the removal of the doll will not affect the case.
15. Q. 126.-Can a father make a gift to his daughter by way of dowry (jahez) out of his property movable or immovable, ancestral or acquired, whether or nut there be (1) sons or
(2) near kindred and whether or not the sons or near kindred, as the case may be, consent ?
16. A. 126.-A father can make a gift in favour of his daughter out of his movable or acquired property, but as regards the ancestral immovable property consent of heirs is essential except in the case of khanadamadi."
17. It is not denied that the initial presumption will be in favour of the entry in the latest Riwaj-i-Am (see Beg v. Allah Ditta (AIR1916PC129) and Karim Dad v. Mst. Sharifa (PLD1955FC155) and the case has to be considered in the light of the custom as recorded in the compilation of 1922, carefully prepared and based on precedents.
18. The special feature of the institution of khanadamadi that mere resident will not confer the statute of a khanadamad and there must be distinct intention to appoint is well recognized. However, such an intention may be indicated by a gift to the daughter or to the husband or it may be presumed from the fact that the daughter even as a bride never left her 'father's house but continued after marriage to reside there. In Mst. Baggi v. Mamun and others (31 P R 1895) a case of Gujjars of Gujrat District, as ,the parties are in the instant case, it was held as for headnote that 'a married daughter is entitled to succeed her father, a sonless proprietor, in a case where, though no definite act of donation is proved, it is a fair inference from the established facts that the sonless proprietor settled that daughter and her husband in his house and on his land with a view -to their succeeding him as his heirs to the exclusion of his collaterals'.
19. The question to be examined is whether Fazal Ali has been living in -the house of his father or father-in-law and has been rendering services to the Father-in-law alongwith the wife, the daughter of the donor, and evidence ,on the record is indicative of the intention of appointing Fazal Ali as a ,khanadamad. The Courts below have come to findings in this regard in favour of the donee. Learned counsel has not been able to show how these concurrent findings of fact are in any manner displaced. The donor has appeared before the Revenue authorities and has accepted the position that he had actually made the gift in lieu of services because he has grown old and it is the daughter and the son-in-law taken in the house as a khanadamad who are looking after him. All these circumstance coupled with the further fact that possession of Mst. Noor Begum is shown in Exh. D. 7, subsequent to the attestation of mutation of gift, establish that there has been a khanadamadi gift. There is no merit in this appeal, which fails and is dismissed. There will be no order as to costs.
20. S. A. H. Appeal dismissed.