ABDUL KHALIQ Versus FAZAL-UR-REHMAN

1. SHAFIUR RAHMAN, J.‑‑ Leave to appeal was granted to consider whether the High Court was right in holding on the touchstone of Muslim Law, the agreement dated 9‑4‑1936, which was a registered documents, to be invalid and whether rule of decision in the case should not have been the customary law according to which the said document would be valid.

2. The property in dispute is agricultural land measuring 620 Kanals 13 Marlas in Village Mianwala, Tehsil Pindigheb, District Attock. It was the ancestral land in the hand of one Shah Jehan in the year 1936. In the year 1933 Shah Jahan exchanged a portion of the land so held by him with one Chanan Shah whereupon a suit was brought by the reversioners of said Shah Jahan challenging the Exchange. During the pendency of that suit an understanding was reached between the parties which was reduced to writing. This deed was a sort of a compromise between the parties whereby a surrender or relinquishment of the rights in the disputed property was given effect to in favour of the reversioners proportionate to their entitlements under the In 1943 Shah Jahan died and was succeeded in the matter of interest in this land by Mst. Banni Begum his widow. In 1946 she mortgaged a part of the disputed property for a sum of Rs.2,000 in favour of the respondents. A suit was thereupon filed by two of the reversioners namely Mehr Shah and Abdullah Shah to challenge the mortgage on the ground that Mst. Banni Begum had only a right to possess and maintain herself and she could not mortgage. A compromise was effected whereunder it was agreed that Mst. Banni Begum would be entitled to 1/8th share of the property on the opening of the succession under Shariat and 7/8 of the property would go to the other heirs of Shah Jahan and the share of Mst. Banni Begum would be subject to a charge of Rs.1200 from the amount of mortgage while the rest 7/8 of the property would be subject to charge of Rs.800. On 24‑8‑1948 Mst. Bani Begum gifted the land in dispute to her daughter Mst. Zar Begum and her sister's son, the respondent No.1. These donees filed a suit for possession against Mst. Bani Begum in which an ex‑parte decree was passed in their favour on 23‑10‑1952. This gift led to the suit by the reversioners from which this appeal has arisen. On 26‑7‑1954, a declaratory suit was filed by the reversioners challenging the gift on two grounds namely, that Shah Jehan had divested himself of the property and Mst. Bani Begum being only a maintenance holder could not gift it and further that the parties were governed by Custom and even under Custom Mst. Bani Begum being a limited owner could not gift it away. The learned Civil Judge seized of that suit, directed the plaintiffs who are now the appellants, to file an amended plaint giving full particulars of customary law. At first Shah Jahan refused to get this deed registered whereupon Mehr Shah presented it for compulsory registration. The Sub‑Registrar refused its registration. On appeal the Registrar being "satisfied that the deed was voluntarily executed by Shah Jehan" ordered it to be registered. The relevant portion of this deed in vernacular is as follows:‑

3. In 1943 Shah Jahan died and was succeeded in the matter of interest in this land by Mst. Banni Begum his widow. In 1946 she mortgaged a part of the disputed property for a sum of Rs.2,000 in favour of the respondents. A suit was thereupon filed by two of the reversioners namely Mehr Shah and Abdullah Shah to challenge the mortgage on the ground that Mst. Banni Begum had only a right to possess and maintain herself and she could not mortgage. A compromise was effected whereunder it was agreed that Mst. Banni Begum would be entitled to 1/8th share of the property on the opening of the succession under Shariat and 7/8 of the property would go to the other heirs of Shah Jahan and the share of Mst. Banni Begum would be subject to a charge of Rs.1200 from the amount of mortgage while the rest 7/8 of the property would be subject to charge of Rs.800. On 24‑8‑1948 Mst. Bani Begum gifted the land in dispute to her daughter Mst. Zar Begum and her sister's son, the respondent No.1. These donees filed a suit for possession against Mst. Bani Begum in which an ex‑parte decree was passed in their favour on 23‑10‑1952. This gift led to the suit by the reversioners from which this appeal has arisen. On 26‑7‑1954, a declaratory suit was filed by the reversioners challenging the gift on two grounds namely, that Shah Jehan had divested himself of the property and Mst. Bani Begum being only a maintenance holder could not gift it and further that the parties were governed by Custom and even under Custom Mst. Bani Begum being a limited owner could not gift it away. The learned Civil Judge seized of that suit, directed the plaintiffs who are now the appellants, to file an amended plaint giving full particulars of the Custom which they were pleading for avoiding the gift. As the plaintiffs declined to amend the plaint and to specify the Custom, the learned trial Court dismissed their suit on the basis of Custom but proceeded to frame the following issues on merits:‑

(1) Was Shah Jehan the last male holder of the land in dispute and did he abandon his rights in the land in dispute in favour of the plaintiffs and his other reversionary heirs excepting his and his wife's right of maintenance out of the land by means of a registered deed dated 9‑4‑1936 and make the plaintiffs and his other reversionary heirs as full owner of the land after the death of defendant No.3?

(2) Did defendant No.3 succeed to the land in dispute for maintenance only after the death of her husband, Shah Jehan in accordance with the terms of the deed of 9‑4‑1936?

(3) In case of proof of issues Nos.l and 2, was defendant No.3 competent to make a gift of the suit land in favour of the rest of the defendants?

(4) Have the plaintiffs waived their pleas contained in paras 1, 2 and 4 of the plaint on the grounds mentioned in para 3 of the additional pleas and are they barred by their act and conduct to bring the suit?

(5) Was Murad Shah last male holder of khasra Nos. 1074, 1016, 1017, 1076, 1019 and 1077 and defendants 1 and 3 are the owners of this land?

(6) Did the plaintiffs or their predecessors‑in‑interest institute a suit in regard to the land in dispute previously and are defendants 1 and 3 not bound by the decision in view of the facts given in para 4 of the additional pleas of the written statement?

(7) If issue No.1 is proved are the reversionary heirs of Shah Jehan not bound by the registered deed of 9‑4‑1936?

4. On merit too, the case of the plaintiffs was dismissed by the trial 1955.

5. In their appeal to the District Judge, an application was submitted by the plaintiffs for permission to amend the plaint with a view to specify the Custom. It was allowed by the District Judge and the case was remanded to the trial Court on 19‑10‑1955. The defendants went in appeal (Civil Appeal No.106/66 of 1955) to the High Court which was allowed on 22‑12‑1958 holding that the plaintiffs were not entitled to fresh opportunity to file the amended plaint.

6. The learned District Judge on remand of the appeal from the High Court again on a misconception, remanded the case to the trial Court which led to another appeal to the High Court (Civil Appeal No.151/10 of 1955) which was again accepted by the High Court on 6‑2‑1961. Again, the District Judge remanded the case to the trial Court with a view to get recorded findings on issues Nos.l to 4 after recording finding on Issue No.7.

7. The trial Court held that the reversioners were bound by the registered deed dated 9‑4‑1936 but in view of the consent decree of 1946 the heirs of Mehr Shah and the other plaintiff Abdullah Shah were non‑suited on the ground of res judicata. As regards the other plaintiffs, no such bar of res judicata was found to exist and they were granted the decree in terms claimed.

8. The District Judge on appeal maintained these findings.

9. There were two appeals before the High Court, one by the plaintiffs who had been non‑suited on the ground of res judicata, the other by the defendants whose claim had not succeeded against the other set of the plaintiffs who were held to be un‑effected by the bar of res judicata.

10. In this background of facts, the learned Judge in the High Court examined the document dated 9‑4‑1936 by reference to Muhammadan Law ignoring altogether the customary law and held as follows:‑

11. "The only law on the basis of which this alienation can be tested is, therefore, Muslim Law under which a person can transfer his property otherwise than by sale, either by a gift or by a will. The gift can be made only by delivery of possession. The law does not visualise a gift in which the owner divests himself of the property but puts off the delivery of possession to two generations or even to a time after his death. The law does not treat it to be a will when the owner immediately divests himself‑of property but postpones only the delivery of possession. In one case the divestment and possession follow the alienation in the other case the divestment and possession both follow the death. In these circumstances this document is not legal under the Muslim Law."

12. The defendants' appeal was, therefore, accepted and the plaintiffs' suit was dismissed in toto notwithstanding the fact that the bar of res judicata was held not to apply to the case.

13. Mr. Bashir Ahmed Ansari, Advocate, the learned counsel for the plaintiffs/appellants has contended that according to Muhammadan Law the gift incorporated in the registered deed dated 9‑4‑1936 was perfectly valid because the gift of corpus of the property could be made to one person and of the usufruct of the property to another for a limited period. For this the learned counsel finds support in the decision of Mst. Inayat Begum v. Mst Maryam Bibi and another (P L D 1953 Pesh.l). In the alternative it is contended that by refusal to amend the plaint he could not take plea of custom for challenging the gift in favour of the daughter and sister's son. He could nevertheless invoke custom for maintaining the gift made in 1936 because he had based his claim on that document and could invoke every aid to sustain it. Finally it is contended that in any case even if the Shariat Law was made applicable on the termination of the limited interest, the plaintiffs could claim a share in the property as held by the High Court and their suit did not merit dismissal in toto.

14. Ch. M. Ismail, Sr. Advocate, learned counsel for the defendants/ respondents on the other hand contended that having not specifically pleaded custom nor any custom having been brought out on the record, no support could be obtained from custom for sustaining the gift in 1936 or for challenging the alienation in 1946. That ground being not available to the appellants they are left only to the principles of Muhammadan Law which clearly enjoins that a gift must have three characteristics, of declaration, acceptance and delivery of possession. As in the present case the declaration itself was disputed at its inception and, the acceptance was also not forthcoming and what is most important a life interest was retained by the donor for himself and the widow the transaction does not satisfy the requirement of a gift nor could it be availed of by the appellants as such. As regards the claim under Shariat it is said that their suit was only for a declaration and the relief that is finally claimed in the alternative would be an altogether on a different cause of action, the trial of which has not taken place in the Courts below and it is only proper that it should not be decided here for the first time.

15. The contention of the learned counsel for the appellant that he can invoke custom for sustaining the registered deed dated 9‑4‑1936 in spite of having not pleaded it when afforded an opportunity to do so is untenable. The following remarks on the subject recorded by Robertson, J, in Daya Ram v. Sohel Singh (110 P.R.1906) were approved by their Lordships of the Privy Council in Abdul Hussain Khan v. Mst. Sona Daro I L R 45 Cal. 450 (P.C.) and were referred to in Mst. Shahzadan Bibi and others v. Amir Hussain Shah P L D 1956 S C (Pak.) 227:‑

16. "In all cases it appears to me under the Act, it lies upon the person asserting that he is ruled in regard to a particular matter by custom, to prove that he is so governed, and not by personal law, and further to prove what the particular custom is. There is no presumption created by the clause [clause (a) of section 5] in favour of custom; on the contrary, it is only when the custom is established that it is to be the rule of decision. The Legislature did not show itself enamoured of custom rather than law nor does it show. any tendency to extend the 'principles' of custom to any matter to which a rule of custom is not clearly proved to apply. It is not the spirit of Customary Law, nor any theory of custom or deductions from other customs which is to be a rule of decision, but only any custom applicable to the parties concerned which is not**, and it therefore appears to me clear that when either party to a suit, sets up 'custom' as a rule of decision, it lies upon him to prove the custom which he seeks to apply: if he fails to do so, clause (b) of section 5 of the Laws Act applies, and the rule of decision must be the personal law of the parties subject to the other provisions of this clause."

17. In view of the law so clearly laid down and the applicability of custom and the specific custom applicable to the parties Being question of fact, it is not open to the appellants to take up that ground at the final stages having not earlier availed of the opportunity afforded to them. In that view of the matter it is no longer open to the appellants to rely on custom for sustaining the document executed on 9‑4‑1936.

18. The contention of the learned counsel for the appellants, that on the basis of decision of the Peshawar High Court in Mst. Inayat Begum separate gift of usufruct of the property from the corpus could be visualized and protected, is also without merit. In this case what the so‑called donor was doing was retaining the usufruct for himself and after his death for his widow and giving over only the corpus of the property. In K.S. Muhammad Aslam Khan v. Khzlilul Rehman Khan and others (P L D 1947 PC 73) the following law was laid down:‑

19. "Their Lordships now turn to the alleged gift. The original gift appears in a daily diary on Ist May, 1930 which is to be found at page 52 of the 2nd part of the Record. Again Mr. Khambatta agreed that so far as the terms of that entry are concerned they do not constitute a competent gift according to Muhammadan Law, because there is a reservation of possession of the property by the donor during his life."

20. In Sardar Nawazish Ali Khan v. Sardar Ali Raza Khan (P L D 1948 Privy Council 23), the same point was explained in the following words: ‑

21. "Their Lordships think that 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 ussfruct under any of the Schools. Their Lordships feel no doubt that in dealing with a gift under Muslim Law, the first duty of the Court is to construe the gift. If it is a gift of the corpus, then any condition which derogates from absolute dominion over the subject of the gift will be rejected as repugnant; but if upon construction the gift is held to be one of a limited interest the gift can take effect out of the usufruct, leaving the ownership of the corpus unaffected except to the extent to which its enjoyment is postponed for the duration of the limited interest."

22. In the case of Shamshad Ali Shah and others v. Syed Hassan Shah and others (P L D 1964 S C 143), the law was reiterated in the following words:‑

23. "The rule of Muhammadan Law on the subject is perfectly clear. Under the Muhammadan Law the delivery of possession to the donee is a condition precedent to the validity of the gift for, to use the language of Hedaya in Vol.III, Second Edition, page 482: "the Prophet (p.b.u.h.) has said, "A gift is not valid without seizin,"

24. It is further stated at page 482 of the same book‑

25. "Tender and acceptance are necessary, because a gift is a contract, and tender and acceptance are requisite in the formation of all contracts; and seizin is necessary in order to establish a right of property in the gift, because a right of property, according to our doctors, is not established in the thing given merely by means of the contract without seizin."

26. In view of what has been discussed above, when custom is not available to the appellants for sustaining the document dated 9‑4‑1936, the document does not stand the test of a gift in the D Hanafi Muhammadan Law and there is, therefore, no merit in the appeal which is' hereby dismissed with costs. As regards a share under Shariat, that was never pleaded, had a different cause of action and cannot be decided in these proceedings.

27. M.I./A‑225/8 Appeal dismissed.