KANIZ BIBI Versus SHER MUHAMMAD

1. MUHAMMAD AFZAL ZULLAH, CJ.‑‑‑ This appeal through leave of the Court is directed against the dismissal by the High Court of appellants' Intra‑Court Appeal. It had arisen out of the respondents' land suit which was decreed notwithstanding the plea of appellant No.1 that the land in question was given to her in lieu of marriage by her father‑in‑law‑, namely, Atta Muhammad, the father of Noor Zaman her husband who is appellant No.2 herein. Two orders on the mutation in question which was sanctioned in favour of the appellant No.1 read as follows:‑‑---

2. The respondents/plaintiffs in this case are the heirs of Atta Muhammad donor other than the son who was involved in the marriage with appellant No.1; namely, Noor Zaman. Ordinarily in such like disputes either the husbands try to retrieve the property from their wives or ex‑wives or they join with others in this exercise but it is a refreshing experience that in this case the husband of the lady has stood by her. He appeared before this Court also taking a firm stand against his brothers respondents Nos.1 and 3 and his mother respondent No2. Thus this aspect of the case which has been ignored throughout will resolve many factual controversies, some of which are relevant and would be presently noticed ‑‑ of course in favour of the donee, his wife.

3. The respondents' suit was decreed on the ground that despite the entry in the mutation aforequoted having evidenced the transfer of the possession there was no cogent evidence produced by the donee (appellant No.1) to show that physical possession had been transferred to her. Khasra Girdawari and Jamabandi entry produced from the respondents' side were noticed as supporting the said conclusion. The plethora of case‑law on the question of the delivery of possession in cases like the present one: when the husband is the donor for a wife living with him, when the father is the donor for a daughter and/or a minor living with him or a father‑in‑law for a daughter‑in‑law and/or her husband living with him, was not at all noticed. It may be straightaway remarked that in such Re cases strict proof by the donee of transfer of physical possession, as in other type of cases, is not insisted upon. To cite only one example the Privy Council three quarters of a century ago in the case of Ma Mai and another v. Kallandar Ammal A AIR 1927 Privy Council 22 had observed that in the case of gift of immovable property by such a close relation of the female as are mentioned above, once mutation of names has been proved the natural presumption arising from the relationship existing between the donor and the donee, the donor's subsequent acts with reference to the property would be deemed to have been done on behalf of the donee and not on his own behalf. This fine of authority is so woven in a chain which is very rarely broken. The obvious consensus has to be followed an" adopted in this case also; there is absolutely no reason for departure. Whatever Atta Muhammad, the father‑in‑law of Mst. Kaneez Bibi did either for cultivation of the gifted land or for collecting the share/produce from the tenants or even changing the tenants would be presumed as acts done or steps taken on behalf of the donee, daughter‑in‑law. In extremely rare cases where the donee lady is a very active member of the society, may be an urbanized educated one, managing her affairs effectively herself the position might be different; but there is nothing in this case to suggest such a position of the donee and/or her conduct. From the appearance of the parties also the above supposition gets strengthened, although it is not necessary as a proof.

4. The examination of the question of possession on first appeal filed by the appellants suffered from same defects. Not only this a learned Judge in the High Court by an unfortunate very short order suggesting clear lack of application of mind disposed of the appellants' Regular Second Appeal by a simple observation that the "possession was not delivered to the donee and in spite of the mutation in favour of the donee the donor himself remained in possession". of course there is no discussion on any piece of evidence nor it is mentioned that the same was at all perused nor was it noticed otherwise. In the Intra‑Court Appeal it appears for the first time that two learned Judges took note of documentary evidence going in favour of the appellants and that too from the Revenue Record. And thus it was examined as material befitting and matching as a rebuttal of what was led from the other side. It is noted in the impugned judgment that: "during the course of mutation also a statement was made by Atta Muhammad that possession of the property had been delivered to the donee but the actual possession remained either with the donor or with his tenant upto Rabi 1956". It is not mentioned as to whom the tenant had attorned or who had inducted the tenant and/or who was receiving the produce from him. However, another aspect, also very weighty, was noticed by learned Judges. They rightly noted that "when the entry of the mutation was incorporated in the Jamabandi appellant No.1 the donee was shown to be in possession of the property through her husband". Not only this the learned Judges also noticed that sometimes the husband of the donee himself was "stated to be a tenant in possession through a tenant of his own. The status of appellant No.2 is shown to be that of a tenant‑at‑will under appellant No.l. This type of entry had continued till then. Atta Muhammad died in the year 1962 and the case of his legal representatives other than appellant No.2 husband of the donee was that there was no gift and in any case it was not complete". Despite this very strong evidence showing delivery of possession to the donee who exercised the same through her husband and/or a tenant‑at‑will under her husband and not tinder her father‑in‑law, the learned Judges of the Division Bench simply observed that they found themselves "unable to agree with the learned counsel for the appellants in view of the entries of the Khasra Girdawari from which it is proved that Atta Muhammad remained in possession after the mutation. From this, it transpires that the statement made at the time of mutation that he delivered the possession of property to Mst. Kaneez Fatima was incorrect". This conclusion with respect does not at all flow from the state of evidence in view of the proposition that the possession was transferred to appellant No.1 which has been summarised above from the expression used in the impugned judgment itself. It is an obvious case of misreading of that evidence. Accordingly, this appeal is liable to be accepted on the above discussed ground alone.

5. In our view the possession was in fact transferred to the donee and it was a complete gift. However, the learned counsel for the appellants also argued that it was a gift in lieu of marriage of the donee with the son of the donor and thus it was in the nature of Hiba‑bil‑Ewaz for which there is no need for transfer of possession. He has relied on Murid Hussain v. Ghulam Ahmad PLD 1984 SC 392, Fakhur‑ud‑Din v. Mst. Zohra Bi 1989 SCMR 2017, Khuda Bakhsh v. Mst. Khudeja Bibi PLD 1968 Lah. 1001 and Asghar Ali v. Mst. Nasreen Akhtar P L D 1969 Lah. 467. In the case of Murid Hussain this Court did treat a gift made by a husband to the wife as "in the nature of Hiba‑bil‑Ewaz" and accordingly held that questions of acceptance of such a gift or proof of delivery of possession were not relevant. It was also held that the gift would be treated as complete and realization of rent of gift property by the husband after marriage would be deemed to be collection by the husband on behalf of the wife in absence of very strong evidence to the contrary. Similar view has been taken in many other cases. Comprehensive list can be found in the notes under the relevant paragraphs of the celebrated book on Muslim Law by Mulla. Thus cases can also be seen exhaustively cited in the Lahore case of Khuda Bakhsh already cited and the said case has by reference been relied upon in the case of Asghar Ali. A very fine distinction has been made by one of the most learned Judges of the Lahore High Court‑(late) Karam Elahi Chohan, J. in cases like the present one between a false (contextual word of art) Hiba‑bil‑Ewaz, a simple Hiba‑bil‑Ewaz together with the discussion of Indian (again contextual word of art) Hiba‑bil‑Ewaz which according to Mulla would be distinguished from "true Hiba‑bil‑Ewaz" and which according to author: was "introduced by Muslim Lawyers of India as a device for effecting a gift of Mushaa in property capable of division". Support for this view was obtained by the learned author from Bailie. This controversy was examined by Mr. Justice Karam Elahi Chauhan in the context of the two types of gifts in cases like the present one those in lieu of dower simpliciter and those in lieu of marriage. It appears that at one stage the learned Judge thought as if both these cases might be covered by false Hiba‑bil‑Ewaz but at another stage it was treated as real true Hiba‑bil‑Ewaz ‑‑ particularly one in lieu of marriage. In the changed circumstances since 1969, vis‑a‑vis, our Constitutional set up and thrust towards Islamic principles for guidance, would lead us towards thinking that it would be a true Hiba‑bil‑Ewaz. That being so, we reiterate the view already taken in the case of Murid Hussain that in cases of Hiba‑bil‑Ewaz in lieu of dower and/or marriage, physical delivery of possession would not be necessary so as to complete the gift. Similar discussion as above is found in some of the cases relating to a gift in lieu of services rendered. In our view, the controversy if any, in that regard would have to be resolved under the umbrella and guidance of the Islamic principles rather than any other rule contrary thereto even if found in the earlier case law.

6. After rendering the decision on the question of possession; namely that in this case it had been delivered to the donee and also that even if it would not have been delivered, the gift in favour of appellant No.1 would have been complete as being Hiba‑bil‑Ewaz in lieu of marriage, there still remain two questions to be examined and resolved: Firstly, what was the nature of the gift; whether, it was that of the corpus of the property or was only of its usufruct and what would be the effect? Secondly, if it was the gift of the corpus of the property and not merely of the usufruct; whether, the conditions attached to the gift making it operative only for the lifetime of Mst. Kaneez Bibi (the donee) will detract from an absolute gift of the corpus in perpetuity and the condition would be treated as void?

7. Although we could have remanded this case for examination and decision of the aforenoted two further questions which have not been examined at the four stages of litigation so far suffered by the parties (obviously because the case stood concluded on the question of possession alone) we consider it proper and necessary to save the parties from further torture of involvement in a lengthy litigation. This is also because not much factual enquiry requiring evidence is needed. Inferences from admitted positions or facts already found only would have to be drawn. No doubt in the statement made on 11‑9‑1953 the attestation of the mutation an attempt was made to show that only the usufruct was gifted to the donee by the use of words (Padawar lany ki haqdar hugi); but in all probability the donee and her parents might not have agreed to it, therefore, the following words were also used by the Officer who heard the donor making the statement:‑‑---

8. Not only this the entries in various columns of the mutation also are very clear that it was the land, the corpus thereof which was being mutated and not only the income therefrom. These suggestions are further strengthened by the language used in the order of attestation of the mutation; wherein gift was accepted as if the land had also been transferred under the gift. The phraseology relating to (Qabsa baemal haba) and specification and the particulars of the land in question together with the word (basorat jadeed); which would refer to the new entries in the various columns of mutation, are indicative sufficiently of the fact that the gift was of the corpus of the land; as it did contain very clear vivid condition of (taheen hayat ) i.e., during lifetime. The use of the word (guzara) in the light of the above discussion was only an embroidery. Thus, it was a case of gift of corpus and not only of the usufruct. Had it been gift of the usufruct only we might have examined the correctness or otherwise of the views expressed by the Lahore High Court in a Division Bench judgment wherein can be found a very elaborate discussion on various aspects of this subject scores of decided cases were cited therein and a distinction was sought to be made between the two types of gifts in cases like the present one leading to different effects. It has been found necessary to make these remarks about the judgment in the case of Mst.Khan Bibi v. Mst. Safia Begurn and others PLD 1969 Lahore 338 because it might need further examination to hold, whether in the changed circumstances, as already noted, in the present Constitutional set up the same defect or disability regarding gift of usufruct would continued to be attachable to it as was visualised in the said case of Mst.Khan Bibi. Same would apply to the reference of the said case in a later Lahore High Court judgment by one of us Muhammad Afzal Zullah, C.J in Farid v. Nur Bibi PLD 1970 Lahore 502. The said case of Mst. Khan Bibi was noticed in this decision also and was distinguished except for the comment to be made on this case of Farid in another context. It is not necessary to make any further remarks on the various questions relating to gift of usufruct as obviously in this case it has been found that as in the case of Farid the gift to Mst. Kaneez Bibi appellant No. 1 was not of usufruct only but also of the land/corpus. The only question to be resolved now is: whether, condition attached to the gift of land making it operative in favour of the donee only for the lifetime (Taheen hayat ) would be valid and operative or would be rendered void on account of the Islamic dispensation as the validity of the gift has to be and is being examined under the light of the Islamic Law. As already mentioned the decision from Lahore in the case of Farid having examined this question with reference to the case‑law by then available, resolved this controversy with the view that the condition would be void. The gift would be operative as that of the corpus in perpetuity in favour of the donee carrying all the necessary implications accordingly. In the work on Islamic Law by Mulla, under Paragraph 153, considerable case‑law (citing dozens of rulings including those of Privy Council) has been noted in support of the proposition that when a gift is made subject to a condition which derogates the completeness of the grant, the condition is void and the gift will take effect if no conditions were attached to it. The cases noted are as under:‑ ----

9. Nizamuddin v. Abdul Gafur (1888) 13 Bom. 264, 275 affirmed on a to P.C. subnomine Abdul Gafur v. Nizamuddin 1892 17 Bom. 1,5,19 IA. 170, 178 as to the last decision. See Mahomed Ibrahim v.Abdul Latiff (1913) 37 Bom. 447,458, 17 I.C. 689; Suleman v. Dorab Ali(1881) 8 IA. 117,122; Abdoola v. Mahomed (1905) 7 Bom. L.R. 306; Mahomed Shah v. Official Trustee of Bengal (1909) 36'Cal. 431, 2 I.C. 292; Ma Hmyia v. R.L.S.A.R.S. Chettyar (1935)'IM I.C. 848, '35 A.R. 318 Pakistan: Bahadur v. Jan Muhammad RLD 1960 (W.P.) Kar. 745 Ghulam Qadir v. Ghulam Hussain PLD 1965 (W.P.) Lahore 200".

10. (From. 1987 Edition revised by M.Hidayat Ullah).

11. The condition under attack in cases of gift to a bride or bride to be or a wife, would be against public policy as envisaged in Islam. As an illustration; in this very case it appears the lady and/or her parents had agreed to the marriage only on the assurance of making of the gift. After making the gift if she is deprived of its real worth, then she would be deemed to have been inveigled into an agreement/contract of marriage, under a representation about a gift which could not be treated as real. Mulla in another context also under another paragraph while dealing with gifts through a medium of trust expressed the view that "Life estates and vested remainders are unknown to Muslim Law, but life estates may be construed as an interest in the usufruct (Paragraph 55 also referred). Successive fife‑interests, however, may be created both under the Sunni and the Shia law in favour even of unborn persons by means of a Wakf. Thus if a fife estate is to be created through a gift it has to take the form of Wakf wherein the question of delivery of possession and other conditions for complying the same would not arise. The contrivance for creating a life estate in the corpus of immovable property through gift is simply prohibited in Islam.

12. As a result of foregoing discussion on the question of condition of life estate attached to the gift made in favour of the donee appellant No.1, it is held that the gift is valid but condition is vioid. It will take effect not only for her life as a life‑estate but also in perpetuity, conveying exclusive title to her.

13. This appeal with the foregoing findings is allowed. All the impugned judgments and decrees are set aside and the suit filed by the respondents is dismissed. However, on account of the close relationship of the parties there shall be no order as to costs.

14. Appeal allowed. M.B.A./K‑164/S.