SAID AKBAR Versus KAKAI

1. MUHAMMAD GUL, J. ‑This appeal by special leave is from the judgment of the late High Court of West Pakistan, Peshawar Bench, dated 13‑5‑1969 and raises a question concerning the proper construction of a deed of gift of immovable property.

2. By a registered deed dated 12‑6‑1945, one Bahadur Khan of village Bakyana, Tehsil and District Mardan, executed a deed described as Tamlik nama in respect of 200 kanals of land in favour of his sister Mst. Totia Begum. For the material purpose the deed after setting out the description of the executant and the property sought to be conveyed under the deed, reads as follows:‑

3. On the basis of the gift a mutation was attested in favour of Mst. Totia Begum on 11‑2‑1949. Effect was also given to it in the Jamabandi of the year 1950‑51 wherein Mst. Totia Begum was recorded as full owner of the land. Mst. Totia Begum was later married to Said Afial son of Sher Dil Khan as envisaged in the gift deed, and both lived as man and wife, though however, there was no issue of the marriage. Mst. Totia Begum died in 1958. On her death inheritance mutation was entered at No. 568 in favour of her husband Said Afzal and her sister Mst. Kakai in equal shares, apparently as Muslim law heirs of the deceased and was attested on 31‑10‑1958.

4. Said Afzal, however, claimed that he was entitled to the property in dis pute as the sole beneficiary under the instrument of gift by Bahadur Khan. Accordingly, Said Afzal brought a suit for a declaration that after the death of his wife Mst. Totia Begum he became the sole owner of the land in dispute and the mutation of inheritance No. 568 in so far as it allowed one‑half share to Mst. Kakai, as sister of Mst. Totia Begum, was ineffectual as against his rights. The allegation was that Bahadur Khan created a mere life interest in favour of Mst. Totia Begum and that too in respect of the usufruct of the property and that he was the real beneficiary of the corpus as remainder‑man.

5. Mst. Kakai contested the suit which was decreed by the trial Court on 6‑2‑1961 on the finding that the donor had made gift of life interest only in favour of Mst. Totia Begum with the vested remainder in favour of her husband Said Afzal. This in the opinion of the learned trial Judge was recognised by Muslim Law. In that conclusion the trial Judge was mainly influenced by the motivation underlying the gift and the provision prohibiting the donee from alienating or otherwise creating an encumbrance on the property in dispute. On that view, in the learned trial Judge held that Mst. Kakai was not entitled to inherit any share out of the land in dispute. Mst. Kakai's appeal before the learned District Judge failed and she filed a second appeal in the High Court. She died daring pendency of her appeal. Her legal representatives were brought on the record after limitation. But delay has been condoned. So far as is material for the purpose of this appeal, suffice to say that the learned Judge on reading the deed as a whole, felt no difficulty to come to the con clusion that on its proper construction, the instrument was intended to create a gift of the corpus (and not that of mere usufruct) of the property in favour of Mst. Totia Begum and the prohibition against any sale or mortgage of the property by her during her lifetime, being derogatory of the completeness of the grant was void under Muslim Law, and that the gift took effect as if no such condition was attached to it.

6. Leave was granted to consider whether the deed of gift was rightly con strued by the High Court in the light of the principles of Muslim Law bearing on the subject?

7. Mr. Khan Bahadur, learned counsel for the appellants, argued that read ing the document as a whole it was clear enough that the intention underlying the gift was to confer a right upon Mst. Totia Begum to enjoy the usufruct of the property for her life. Learned counsel strongly relied upon the funda mental condition subject to which the tamlik was to become effective namely, that Mst. Totia Begum will agree to marry Said Afzal and will live with him as wife and that if at any time she refuses to do so then the Tamliknama will become void and of no effect. It was, therefore, urged that the limiting con dition read with the prohibition against any sale or mortgage of she property by the donee during her lifetime connotated a creation of mere life interest in favour of Mst. Totia Begum without constituting her absolute owner.

8. Mr. Akbarji learned counsel for the legal representatives of Mst. Kakai, on the other hand supported the view taken by the High Court and urged that reading the Tamliknama as a whole there can be no manner of doubt that the Tamlik was intended to take effect as the gift of the corpus of the property and not merely of the usufruct. He particularly relied upon that portion of the deed according to which after the death of Mst. Totia Begum the property was to devolve upon her husband and her children both male and female born of the marriage. As to the prohibition against any sale or mortgage of the property of Mst. Totia Begum, learned counsel relied can the Monograph 164 in Mulla's Principles of Muhammadan Law, page 143 which reads:‑

9. "When a gift is made subject to a condition which derogates from the completeness of the grant the condition is void, and the gift will take effect as if no condition was attached to it."

10. Having considered the terms of the Tamliknama in the light of the various precedent cases bearing on the subject, we have no doubt in our mind that the gift in favour of Mst. Totia Begum was of the corpus and was not merely of the usufruct for her life: rather it constituted her to be full owner of the property and the prohibition against any transfer or mortgage of the property by her during her lifetime, being in defeasance of her rights under the gift under the well settled principle of law became void. The law on the point is compendiously stated in the monograph set out above. The above state ment of law is based on the authorities noted below the monograph and also in the foot‑notes.

11. That the gift was in respect of the corpus and not merely of the usufruct is manifest from the language of the deed quite apart from the subsequent conduct of the parties, which was also reflected in the entries in the relevant record, which described Mst. Totia Begum as the full owner. The deed itself is described as Tamliknama which is common‑place word to denote outright gift of property though it may be that mere description of an instru ment is not always decision of its true nature. In the instant case the donor expressly acknowledged the delivery of possession to the donee (BATORAY MULK). Now the word (MULK) is a derivative of the Arabic word (MALIK) the equivalent of which is the "lord" or "possessing absolute authority". The same word is repeated in daily prayers by Mussalmans with reference to the attributes of Almighty Allah as the Lord of the Day of Judgement in verse 1:3. Malik and malik are two different words from the same root, the former signifying master and the latter king. And (MULK) is what a Malik or malik possesses or owns. Not only that: the word is followed by a declaration by the executant that henceforward he and his heirs will be completely divested of any right what ever in the land and then follows a statement as to the real motivation for making the gift namely the impending marriage of the donee with Said Afzal. The further provision which also goes a long way to demonstrate that the in tention was to create a gift of the corpus and not of mere usufruct of the property is that Mst. Totia Begum was constituted a fresh stock of descent in respect of the property which clearly militates against life estate. The instru ment expressly provides that on her death the property will devolve upon her husband and any children born out of the wedlock who were the persons entirely different from the line of heirs of the donor, under the Muslim Law of inheritance. Therefore, upon proper construction of the instrument we have no doubt whatsoever that the learned Judge in the High Court came to the right conclusion that the gift in favour of Mst. Totia Begum was corpus of the property, which constituted her to be an absolute owner of the property, and, therefore, the condition prohibiting the sale or mortgage of property by her during her lifetime became void.

12. Learned counsel for the appellant cited, among others, Privy Council case Amjad Khan v. Ashraf Khan and others (AIR 1929 PC 149), in support of the proposition canvassed by him that the gift in this case merely created a life interest which terminated with the life of the donee and since the prime motivation for the gift was to make Mst. Totia Begum to agree to her impending marriage with Said Afzal, therefore, the intention really was to benefit him and not Mst. Totia Begum personally. The facts of the precedent case, however, were" materially different. In that case the donor by the terms of the deed purported to make a gift to his wife of the entire property detailed therein. He, however, divided the property into two parts viz. 1/3rd and 2/3rd with a view to giving the donee a power to alienate the 1/3rd of the property or any part thereof. It was, however, expressly provided that after the death of the donee` the entire property gifted away by the documents should revert to the donor's collaterals named therein subject to any alienation of the 1/3rd part of the property men tioned in the deed. As explained by their Lordships of the Judicial Committee in the subsequent case of Nawazish Ali Khan v. Ali Raza Khan ((1948) 75 IA 62), the interest created in the case of Amjad Khan was a life grant the whole of which was to revert to the donor's collaterals on the death of the donee. In the instant case on the other hand as pointed out already the donee was made a fresh stock of descent so that after her death the property devolved upon her husband and her children born by her which evidently was to happen under the Muslim Law of Inheritance. The distinction between this case and some of the other cases relied upon by the learned counsel for the appellants is that in those cases the maker of the gift intended to transfer the usufruct of the property which indeed was limited interest subject to the further condition that the interest was created for a specific time, and the property was to revert to the donor after the expiry of the limited period.

13. The Privy Council case in Nawazish Ali v. Ali Raza Khan noticed earlier, contains a comprehensive statement of the relevant law in the following terms:‑

14. "In general, Muslim Law draws no distinction between real and personal property, and it does not recognise the splitting up of ownership of land into estates, distinguished in point of quality like legal and equitable estates, or in point of duration like estates in fee simple, in tail, for life, or in remainder. What Muslim Law does recognise and insist upon, is the distinction between the corpus of the property itself (ayn) and the usufruct in the property (manafi). Over the corpus of property the law recognises only absolute dominion, heritable, and unrestricted in point of time; and where a gift of the corpus seeks to impose a condition inconsistent with such absolute dominion the con dition is rejected as repugnant ; 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 such 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. No doubt where the use of a house is given to a man for his life he may, not inaptly, be termed a tenant for life, and the owner of the house, waiting to enjoy it until the termination of the limited interest, may be said, not inaccurately, to possess a vested remainder. But though the same terms may be used ire English and Muslim law to describe much the same things the two systems of law are based on quite different conceptions of ownership. English law recognises ownership of the land limited in duration, Muslim Law admits only ownership unlimited in duration, but recognises interests of limited duration in the use of property. There is no difference between the several Schools of Muslim Law in their fundamental conception of property and ownership. A limited interest takes effect out of the usufruct under any of the Schools."

15. However, that may be, it is impossible to suggest on a fair reading of the instrument of gift, that the intention of the donor was to benefit Said Afzal ultimately. At best the gift carried with it an inducement for Mst. Totia Begum to agree to marry Said Afzal and to live with him thereafter as his wife Indeed these were in the nature of condition precedent for making the gift effective. The gift deed goes on to provide, that if these conditions shall remain unsatisfied, then the gift shall be deemed to have become void. In such event neither the donor's sister nor her husband will have any concern with the land which shall remain the property of the executant. This being the free translation in English of the material clauses of the gift deed, it is idle to suggest that the prime object underlying the gift was to benefit Said Afzal personally.

16. For the foregoing reasons, therefore, the case was rightly decided in the High Court. The appeal, therefore, fails and is dismissed. However, parties are left to bear their own costs.

17. K. B. A.

18. Appeal dismissed.