1. This suit has been brought by the plaintiff as one of the heirs of the deceased Aishabai to have her half share in the house in dispute distributed amongst her heirs. It has been resisted by defendants i, 2 and 3 as donees from Aishabai under a hiba-bil-evaz, dated the 11th of October 1898. The defence was originally two-fold. The defendant No. 2 contended, in his written statement, that he and his children, the defendants 1 and 3, had acquired a complete title to the property in suit against Aishabai by adverse possession, or, in the alternative, that Aishabai had given to them by the deed of gift in the form of hiba-bil-evaz all her rights, title and interest in the property in October 1898, and that the said gift was legal and binding and effected a valid transfer of the ownership under the Mahomedan law. On the face of it, these two defences are rather contradictory than alternative. For it is clear that if, as the defendant 2 alleged in his written statement and has reiterated in his oral evidence before this Court, he had had adverse possession of the property for more than twelve years, Aishabai would have had no right, title or interest which she could make the subject of gift to him in 1898. Or assuming that he means no more than that his adverse possession had commenced to run some years before 1898, and had not then ripened into legal ownership, still the implication would be that Aishabai was not in possession of the property, and therefore would not have been in a position to comply with one of the essential requirements of the Mahomedan law of gift. Similarly, if he relied upon a gift by Aishabai in 1898, it is as clear that he could not establish any title against Aishabai's heirs by adverse possession. And as soon as I had heard the written statement read, it seemed to me that this was really a case in which it would be necessary to put the defendant to his election. He might rely upon one defence or the other. But upon the general principle of aligen contraria non est audiendes, he can hardly be allowed to rely upon both. Or assuming that as a mere matter of pleading he might have relied upon both, it is pretty clear that by endeavouring to press both these defences at one and the same time upon the Court, he would virtually put an end to all chances of succeeding in his defence. But as soon as the case opened, the learned counsel representing the defendants anticipated any such observations by framing issues which contained no allusion whatever to the defence by adverse possession, and, on his attention being drawn to this, stated that his client intended for the purposes of this suit to rely upon the gift and the gift alone.
2. Now the case has really broken up into two parts. The first ground of defendant No. 2's defence was that the plaintiff was not entitled to maintain this suit. And he based that contention upon the allegation that the plaintiff was not the legitimate son of his putative father Adam and mother Aishabai, but an illegitimate son of Aishabai born to Adam out of wedlock. Considering the character of the suit and the fact that among the other defendants there are undoubted heirs of the deceased Aishabai, who would have been entitled to have precisely the same issue tried and determined between them and the defendant No. 2, this preliminary line of defence was, in my opinion, ill-advised. The position of the defendant No. 2 and his children defendants Nos. i and 3 in relation to the plaintiff and other defendants in this suit is simply this. The plaintiff and the other defendants represent the heirs of Aishabai and the defendants i, 2 and 3 are holding the property against the heirs of the estate. It could, therefore, have made no difference to all that is substantially in issue between these three defendants and the other parties to the suit, whether the carriage of the suit had been entrusted to the plaintiff or to defendant No. 4. But the preliminary objection taken to the plaintiff's right to maintain this suit was referable to, as indeed very soon frankly acknowledged, what always seems to be a preponderant factor in litigation-a factor to which more importance is often given than to the actual rights of the contesting parties themselves in the subject-matter of the suits, I mean costs. The defendants' justification for adopting the line he did was that, whereas he had reason to believe that the defendant No. 4 who might have been entrusted with the carriage of the suit, as an admitted heir of Aishabai, was a man of sufficient substance to pay his costs, should he prove successful in resisting this claim, the plaintiff was not. In order, therefore, to have the carriage of the suit placed in the hands of a man who would be in a position to pay costs, the defendant No. 2 did not hesitate to raise this defence casting a serious slur upon the birth and social position of the plaintiff. And in doing so, he must have been aware that that kind of accusation is one which all Courts habitually view with disfavour. It is a charge which, if recklessly made without any reasonable ground of being able to substantiate it, is almost sure, upon its breaking down, to set the Court in some measure against the party who has preferred it. But I cannot help thinking that it is a little deplorable that the eagerness of the parties to be guaranteed all their costs should have hurried the defendants in this case into raising reckless and scandalous issues of this kind, reflecting for the first time, as far as I can see, after fifty years, upon the birth, parentage, and legitimacy, of the plaintiff.
3. As, however, that preliminary issue was raised, the onus of proof lay upon the plaintiff and up to the time when, upon an intimation of the Court's opinion, the defendant, with a readiness which goes some way towards atoning for having pushed the inquiry so far at all, withdrew from all further contention upon that ground, the onus probandi and the opening of the case lay with the plaintiff.
4. Now the only ground upon which the defendant attacked the legitimacy of the plaintiff Moosa bin Adam was that, notwithstanding every effort, and notwithstanding as complete a search as possible having been made of the marriage registers kept by the local Kazis, no marriage certificate of Aishabai with Adam bin Kasam, in or about the year 1859 or 1860, could be found. And the Court was asked to infer, or would have been asked to infer, had this issue been wound up by the ordinary formal argument, from this circumstance that Adam never had married Aishabai and that Moosa, the plaintiff, was the offspring of illicit concubinage.
5. Now were the system of keeping marriage registers amongst the Mussulman community nearly half a century ago perfect or anything like perfect and exhaustive, this would certainly have been a very reasonable ground upon which to raise an inference that no marriage between Aishabai and Adam had actually taken place and an attempt, no doubt, would have been made had the matters been pressed further to show that while this particular certificate of marriage was not forthcoming, there were certificates of contemporary marriages not only in the same caste but in the same family. However that may be, looking to the class of people to whom the plaintiff belongs, I should hesitate very long, I came to the conclusion upon no other ground than the want of a marriage certificate in the year 1860 in the Kazi's books, that there necessarily had been no marriage between the putative father and mother of the plaintiff. There is perhaps no subject upon which the Courts lean more strongly in favour of one view and against another until convinced by the most conclusive evidence than the subject of legitimacy and lawful marriage. Wherever it is shown upon the facts to be possible that a man and woman who claim to have been married may have been married, the Courts would always lean strongly in favour of the conclusion that a marriage has taken place. Wherever, upon the facts shown, it is possible that a child has been born in a lawful wedlock and is therefore legitimate, the Court would always lean most strongly in favour of his legitimacy until the contrary is most clearly and irrefutably proved.
6. The evidence on this point shows, in my judgment, that the plaintiff was born about fifty years ago, say in or about the year 1860, that he and his uterine sister Khatiza were always treated by Adam as his children, and that in the estimation of the community, as deposed to by one old witness, the plaintiff has been regarded throughout his life as the legitimate son of Adam and Aishabai. The defendants' own evidence proves that Aishabai was free to marry towards the end of the year 1859 or the beginning of the year 1860. And although one of the defendants' witnesses deposed, as was to be expected, that he had always understood that the plaintiff was not the legitimate son of Adam, that evidence standing alone goes for little or nothing. It is proved by the Kami's records that when the plaintiff and Khatiza were married, Adam was present at the ceremony and put himself forward as their father. The same witness states that it would have been a sin against his religion to have done this, had he known that he was only their father in the natural and not in the full legal sense. There is likewise the evidence of Manubai, the half-sister of the plaintiff, which appears to me to be entitled to considerable weight as being the testimony of a member of the family who has grown up and spent all her life with the plaintiff and his sister Khatiza and has always believed from the conduct of Adam towards them that they were his legitimate children. It is further in evidence that at the ceremony of the girl's marriage her uncle Uma, the second son of Kasam, was her Vakil and that increases the probability that she was the legitimate daughter and not the child of concubinage. Further, there is the undisputed fact, that Adam was the Patel of his community and that the plaintiff has succeeded him in that office. This shows what his reputation amongst his own people was. For, it is at least inferable that, had they known him as a bastard, they would not have elected him in succession to his father.
7. Against all this evidence which, in view of the fact that the bastardy of the plaintiff is now brought up against him for the first time in his fiftieth year, appears to me to be conclusive, the defendant has nothing to offer but the absence of the marriage certificate and his own interested statements. As to the absence of the marriage certificate, the Kazi has informed the Court that marriages amongst his people may be and frequently are solemnized before a Mulla, who keeps no marriage records and who would not, therefore, have given to the parties a marriage certificate.
8. Upon the first question, then, whether the plaintiff is the legitimate son of Adam and Aishabai, I have no hesitation whatever in finding in the affirmative. And I repeat, what I think it a pity, that for so paltry a reason and on such insufficient grounds, reckless and hurtful charges of this kind should have been made and pressed against the plaintiff.
9. If then he is the son of Adam and Aishabai, although not in strictness the paternal uncle of the deceased Aishabai, throughout this case called Aishabai, he is indisputably one of her heirs and therefore entitled to bring this suit.
10. It is unnecessary to go in detail into the family tree; but, for the sake of clearness, it may be stated that the propositus was one Kasam who had four sons of whom Adam, the father of the present plaintiff, was the third. The grand-daughter of the eldest son Piru is Aishabai, for the distribution of whose estate this suit is brought. The defendant No. 4 is her husband and therefore, of course, her heir. The remaining defendants are the representatives of Suleman, the son of Ali, the fourth son of Kasam. And the defendants i, 2 and 3 come in this way. The defendant 2 was the husband of Mariam, sister of Aishabai, and the defendants i and 3 are his son and daughter. Thus the defendants i, 2 and 3 are clearly not the heirs of the deceased Aishabai and can only resist the plaintiff's claim on the strength of the gift which they now set up. As none of these facts are now disputed, a mere statement of them disposes of the second and the third issues; and that brings the first part of the case to a conclusion.
11. The second part of the case is of a different character, and the burden of proof lay entirely upon the defendant No. 2. He therefore had the right to begin and, after the evidence was taken and the gentlemen representing the plaintiff and the 4th defendant whose interests are identical had summed up, the last word lay with defendant No. 2!s counsel. That is a course of procedure which has been followed in this case, and I merely mention it to explain what might otherwise be thought to have been a deviation from the ordinary rule that he who begins has a right to the last word.
12. I come now to a consideration of the principal question in the case, which is whether the deed of gift of the 11th of October 1898 was genuine and valid and in all respects effective to transfer the ownership of the property according to the Mahomedan law. The decision of this question involves a discussion of the rather obscure and infrequent doctrine of the hiba-bil-ewaz or gift for consideration. In his concluding address, the learned counsel for the defendant claimed that whether this were a simple gift or a hiba, or a hiba-bil-ewaz, a gift for consideration, in either case the result must be the same and the Court must decide in favour of his client. Throughout the course of the long and learned arguments which have been addressed to the Court on both sides, there has been a tendency, especially in discussing the case-law, to confuse the distinctive characteristics of the simple gift or hiba with the gift for consideration or hiba-bil-ewaz. But, when we look to the deed of gift itself, it is not open, I think, to the defendant to contend that it can be anything hut what on the face of it it purports to be a hiba-bil-ewaz or gift for consideration. We have here a written instrument, and in that instrument it is expressly stated that the gift was for a consideration of Rs. 5 and that that consideration actually passed and was received by the donor. And as this is the document upon which the defendant himself relies, it is plain that he cannot go back upon its terms and take advantage of any peculiarities of the simple gift or hiba which may, perhaps, be wanting in the sub-species of gift for consideration, hiba-bil-ewaz.
13. Before I proceed further to discuss some at least of the authorities to which I have been referred, before I attempt to analyse the notions which the early Mahomedan lawyers really had in mind when they laid down this classification of gifts, it would be as well, as reference frequently will be made before the judgment ends, to the facts of the case, to state in a very few words what I find those facts to be.
14. The house in question belonged to two sisters Mariam and Aishabai; each of them was entitled to a moiety, and their rights in this house were analogous to, if not exactly the same as, those of English tenants-in-common. Aishabai was married three times in all. And it is part, at any rate, of the defendant's case that both before and after executing the deed of gift she resided not in this house but in her husband's house. Subsequently to the deed of gift, she married her third and last husband, the defendant No. 4, Ibrahim Issa. And the defendant's case is that from the date of her marriage to him and until a very short time before her death in 1905, she always resided with him and retained no right or interests, much less had the actual possession of her half house in dispute. The defendant No. 2 and his children, as the husband and children of Mariam, were entitled to the other half of this house, and I have no doubt resided in it. It is also to be noted, as perhaps suggesting a stronger motive in Aishabai to make the gift, that the defendant No. 2 was not only the husband of her sister but afterwards married her daughter Sohrabai and thus became her son-in-law as- well as her brother-in-law. It is alleged by the defendant that after the death of all her own children, the last of whom defendant No. 2's wife Sohrabai died in 1896, Aishabai concentrated the whole of her affection upon the defendant No. 1, son of defendant No. 2, who was then a child of about 8 or n years. And it is suggested by the defendant No. 2 that during the period between her marriage with the defendant No, 4 and her coming to 33 reside in the house a month or two before her death in 1905, Aishahai only visited the house in dispute when the little boy, now defendant No. 1, invited her to do so. In 1898, the deed of gift was undoubtedly executed and duly registered. Some point is made out of the fact that the stamp paper was procured in August, precisely two months before the deed was executed. But I do not think that that and many other circumstances which have been brought to the notice of the Court as bearing upon the same point really have much importance. For the plaintiff it is contended that the proper inference to be drawn from this is that Aishabai already an old woman and under the influence of defendant No. 2 was reluctant to execute the deed of gift and that it took two months to persuade, deceive, or coerce her into doing so. On the other hand, it is alleged that she was going about consulting the relatives of her former husband Goja, and that the making of this deed of gift was a matter of common knowledge of which every one in the street was perfectly well aware.
15. Now whether or not the deed was clandestinely made, or whether it was made openly and after giving information to the parties most vitally interested, would have but little bearing on the case unless the Court were disposed to attach more importance than I am disposed to attach to the allegation of undue influence. Looking to all the facts, which have been deposed to, surrounding the preparation, execution and registration of the deed, I entertain very little doubt that this deed of gift was, in a broad sense, perfectly genuine, that is to say, that Aishabai meant to execute it and did execute it and that no secrecy whatever was maintained about it.
16. There are several circumstances which have some bearing upon this aspect of the question. There is the dispute which arose between Aishabai and Umar, the brother of her former husband, Goja. The explanation of which is that Goja was very indignant at her express intention of giving away the property to her sister's son instead of to her husband's relation. There is, however, the fact that shortly before the execution of this deed of gift, Aishabai got the house transferred in the Collector's and Municipal records to her own name. Her only object in having that done could have been to renounce all doubt as to her capacity to dispose of the property. There is also a considerable amount of oral evidence the weight of which, I think, is all in favour of Aishabai having executed this deed of gift deliberately and openly. As to whether she was deceived into doing so or not, I am unable to discover anything in the evidence for the plaintiff which would warrant the Court in coming to any such conclusion.
17. Where purdah women enter into negotiations or transactions of a complicated legal nature, the Courts have always shown a strong inclination to insist upon proof that they have been properly advised. But, assuming that it was really Aishabai's intention to make a free gift of this property, even had she been, which she was not, a purdah woman, I do not understand what assistance she could have derived from any skilled outside advice. The evidence shows that Aishabai was a woman of some capacity who looked after her own affairs, according to the plaintiff's own case, collected rents and may very safely be taken to have known what she was about when she contemplated and carried out this gift.
18. These observations will be sufficient to dispose of some of the minor points in the plaintiff's case, for I do not believe that any undue influence was brought to bear upon Aishabai nor do I believe that there was anything whatsoever clandestine about the execution of the deed of the gift. It is, however, more with the facts subsequent to this than those which preceded the making of this deed that I am now concerned.
19. I may, however, devote a word or two to what I may call the general antecedent and surrounding probabilities.
20. At the time that Aishabai is alleged to have given away her half share of this house to defendant No. 1 she was, I may say, a childless widow in the sense I mean that all her children were then dead. There can, I think, be no doubt whatever that she entertained a very strong affection for the defendant No. 1 and that it is antecedently probable that she would have wished to make him the object of her bounty. It appears that the defendant No. 2 was also on good terms with her. Then he must have been residing in the other half at any rate of this house for sometime, and it is indeed the plaintiff's own case that he had managed her affairs and had indeed obtained such an ascendency over her as to stand in a fiduciary relation towards her. I am not prepared to say that the evidence goes the length of convincing me that the defendant No. 3 really stood in any fiduciary relation to Aishabai, but I am prepared to hold that speaking generally a cordial relation existed between them and that Aishabai might very well be thought to have contemplated making what provision she could for the defendant No. 1.
21. It is also in evidence that she possessed properties through her former husband, and, I think, that the amount she actually obtained from the estate of Goja was Rs. 1,800. It is also alleged by the defendant, though this is not admitted by the plaintiff and t rests, I believe, on the unsupported testimony of AH Umar, that before she/filed her suit against Goja her brother and representative in 1901, Umar was paying her from Rs. 20 to Rs. 25 as she needed the money out of the rents of his father's house. Possible this allowance ceased when the suit was brought which resulted in her obtaining a lump sum of Rs. 1,800. But if this evidence is true she was in receipt of those moneys at the time the gift was made, which is the only importance this evidence has for our present purpose. From this it is legitimate, no doubt as the defendant No. 2 suggests to draw an inference, that Aishabai was not wholly dependent on her share of the rents of the house in dispute and would, therefore, have been more likely to have divested herself wholly of that source of income during her lifetime in favour of defendant No. 1. These are the principal probabilities which emerge from the evidence concerning the making of the gift, and so far as they go they are all in favour of the defendant No. 2's contention that Aishabai quite naturally wished to, and was in a position to bestow upon her nephew this substantial mark of her affection.
22. I come now to consider much more important facts which the evidence discloses subsequently to October 1898. In view of the requirements of the Mahomedan law, where gifts are concerned, for the legalizing and perfecting of such modes of transfer, it is clear that the real contest would centre upon what occurred after the alleged gift was made, upon what the conduct of Aishabai herself was, as indicating whether or not the document upon which the defendant No. 2 now relies truly expresses what Aishabai intended by that document to do.
23. Now the whole of this evidence may be very briefly disposed of in a few words. I am not going into an elaborate analysis of the depositions of the witnesses or a comparison of their conflicting statements. It is enough to say that while the defendant No. |2 certainly did not create a very favourable impression upon my mind in the box, although he appeared to me to be an unprepossessing and reckless witness, the defendant No. 4 impressed me still less favourably and if the decision rested upon weighing the testimony of the defendant No. 2 against the defendant No. 4, bad witnesses though both of them are, I think, I should be disposed to take the lesser of the two evils land therefore rely on the evidence of defendant No. 2. As to the plaintiff, he really appears to me to have very little knowledge which could be of any service to the Court upon matters of this kind, and the other witnesses in the case on either side are also negligible. Some of them have been called primarily for the purpose of establishing plaintiff's legitimacy and on the defendant's side others have been called, primarily for the purpose of showing that there was nothing clandestine about the making of the gift. So that, were there no other evidence than the oral evidence, the Court might be in a considerable difficulty in coming to its decision upon what appears to me to be the most important question of facts in the case. Fortunately, however, there is really no room for doubt at all. The admissions of the defendant himself, the admissions of his son in their written statements, in their information to the Police, the depositions before the Coroner, in their Attorney's correspondence, really, I should have thought, would have shut their mouths entirely and convinced them that the only proper starting ground of their present case would have been the point on which all those accumulated admissions leave us and that point is that, indubitably up to the date of her death in 1905, Aishabai not only resided in the house in dispute, but appropriated her share of the rents precisely as she always had done before there was any question of a gift at all. The fact becomes of the first importance as it will presently appear when I have come to discuss the law of the case.
24. I may then summarize my findings of facts briefly for the purpose of starting my investigation of the law thus.
25. Aishabai made a deed of gift voluntarily and knowingly in the terms in which it is expressed in Exhibit 3. There was no secrecy about it, and the relatives of her former husband certainly were perfectly well aware of what she was doing. But her conduct, after having made the gift in 1898 up to her death in 1905, remained precisely the same as we should have expected it to be, had there been no gift to defendant No. 1.
26. I have now the difficult task of dealing with the Mahomedan law of hiba-bil-ewaz or gift for consideration. This difficulty arising upon the very face of the terms used in the definition has been, I think, enormously heightened by the entangled web of thoughts and phrases which has been woven round it by text-book writers and judicial pronouncements. We always have to remember in endeavouring to administer the Mahomedan or the Hindu law that modern notions and modern terminology are perhaps not best adapted to giving expression to what the, framers of these Codes really had in mind. Subtle, no doubt, as their intellects were, up to a certain point, they had not been trained for generations m scientific methods of classification up to the point of avoiding in their definitions of legal concepts all confusions and contradictions. The present is a striking illustration. The Mahomedan law defines gift (to quote freely) as a transfer of ownerships without consideration. That is a very sensible and proper definition common to the thought of every country which has a system of law. But, under the genus of gift, they immediately include two species which are called hiba-ba-shart-td-ewaz and hiba-bil-ewaz, which mean gift on condition of a consideration and gift for consideration, both being contradictions in terms of the principal definition of gift. And the ingenuity of English text-book writers and many eminent Judges in the past has been expended, and I think wholly in vain, in trying to draw an intelligible distinction between these two sub-species.
27. With that point, however, I am not immediately concerned. What I am concerned with is to try and get a clear conception of what the Mahomedan law really meant by the hiba-bil-ewaz or gift for consideration as distinguished from a pure gift on the one hand and a sale on the other. And while I think of it, I may observe here that the Mahomedan law of sale, as a special law to be administered by our Courts, has long since been abolished. So that, when we find the application in practice of the doctrine of hiba-bil-ewaz being so extended as to be practically synonymous with sale, one at least of the dangers to be guarded against is being too apt to deal with the consequences, as though the law of sale intended to be applied were English and not the original Mahomedan law. For, it seems to me clear beyond all possibility of, at any rate, theoretical dispute that if any analogy giving rise to practical legal consequences really does exist between hiba and the law of sale, the analogy ought to be confined to the old Mahomedan law of sale, and cannot fairly be extended to a foreign law of sale with which the Mahomedan law-givers were wholly unconversant.
28. The learning, ability and industry of all Counsel engaged in this case have given me a survey, I think, of almost the whole field of case-law on this curiously interesting subject, as well as of the opinions and comments of all the best accredited textbook writers, and I was particularly indebted to Mr. Jaffer for his bold and quite proper attempt to go at once to the root of the matter and get, as near as he can, to something like an intelligible ground of principle with which to start our discussion. I think there can be no question that Mr. Jaffer was perfectly correct when he said that the original concept which was intended to he enshrined in Mahomedan law by the hiba-bil-ewaz; was very far indeed from the shape that modern doctrine has assumed after undergoing a long process of moulding at the hands of English text-book writers and English Judges.
29. Logically, as I began by saying, there is a contradiction in terms between the notion of a gift and a1 gift for consideration and, therefore, there is something on the face of it inconsistent in a system of law which places under the head of gifts anything for which consideration is required. But at the time the Mahomedan law was codified or reduced, at any rate, to learned treatises, the society, for the regulation of whose rights and conduct it was enacted, was still very largely in the nomadic state. I am quite prepared to accept Mr. Jaffer's fruitful suggestion that the original notion underlying the hiba-bil-ewaz was not so much what would now be implied by the terms a gift for consideration as an exchange of gifts. And that in itself, though in the strictest analysis is no doubt contradictory of the definition of gift, would be very much less so than the meaning which our Courts have tended ever more strongly and strongly to impress upon the hiba-bil-ewaz. A gift for a gift is such an original sentiment, so common amongst chivalrous people amongst whom in early days the Arabs ranked high, that it is quite conceivable that their law-givers should have recognized what was the common practice, and I have very little doubt that Mr, Jaffer was also correct when he said that an exhaustive analysis would reveal this result, that in that form of transfer of property what was required was really two complete gifts, that is to say' that the whole transaction would not be complete until there had been a delivery of seisin on both sides. And if we could leave the matter there, none of the complexities and contradictions with which the text-books and cases on this subject now swarm need ever have arisen. And it is equally certain that the purposes, to which this slight extension of the rigid theory of pure gift might be put, very soon took hold of the subtler minds of Mahomedans who came under the influence of growing civilization and the greater needs of complex society. So that we observe, as we always expect, certain forms of law rather too rigid to be altogether suitable to the people to be governed by them, undergoing rapid extension by way of fiction with a view to evading the rigour of the common law. So that it took no long time for the Mussalmans of India, at any rate, to elaborate the doctrine of hiba-bil-ewaz as we now find it, and that doctrine appears to be that a gift for a consideration is something so very like a sale that so far as judicial pronouncements on the subject go, it is absolutely impossible to distinguish between the two And the reason for this too is, I think, obvious. I mean the hiba-bil-ewaz with the connviance of the person to be benefited would become a very easy way for Mahomedans to evade the strict provision of their law of inheritance and by use of this fiction, while nominally parting with their property, they could retain the use of it during their own lives. But, as a mere matter of theory, I must demur entirely to the proposition which seems to me to have become now universally current. I do this with the utmost respect to all those high authorities upon which it rests, and I say I do so theoretically only because in practice, if occasion arose, I should feel myself entirely bound by any authorities which the law makes binding upon me. I am speaking now of the current proposition that a hiba-bil-ewaz, in all respects in its legal incidents, in all its conditions, and in all its consequence, resembles a sale. Now, if there is any meaning at all in the word 'resemble,' in that connection, which I confess I find it a difficulty in discovering, no one of the numerous minds which have been applied to elucidate these definitions, has, I believe, attempted to point it out. What in effect the proposition means, if it means anything, is that hiba-bil-ewaz is to all intents and purposes a sale and not a gift Now, whether we adopt the English law of sale or whether we turn to the old Mahomedan law of sale, it would be very easy to point out that the hiba-bil-ewaz, although it may resemble, certainly does not correspond exactly in all its conditions, incidents and consequences, with the sale. If we are verbally precise, it is true that so long as consideration is given for an object received that transaction should be classified rather under the head of sale than under the head of gift. But in the peculiarities of Mahomedan law, which prescribes conditions validating each form of transfer, more than one difference is discernible. And the main difference upon which I should like to dwell, because it has a curious significance when we have to study the case-law, although no doubt not a difference in words, is, I believe, a difference in substance. And it is this that in theory at least sales presuppose some proportion between the consideration paid and the thing received. In other words, in all theories of sale, although there may be exceptional cases, the expectation is that the consideration would be approximately adequate, and this is always made a ground, where the genuineness or the bonafides of the sale is impeached, of testing the allegations of the parties on the one hand that it is fraudulent, on the other hand that it is genuine. Taking it then to be ordinarily an essential of sale that there should be an adequate consideration of what I believe to be in theory a most striking difference between hiba-bil-ewaz and the normal sale, to that in the former the essential of the consideration in the original form of the concept was that it should be utterly inadequate. And this, again, would lend some additional show of consistency to what is so obviously inconsistent in the early Mahomedan classification. Amongst primitive people it is not at all, I believe, an uncommon trait to accept some acknowledgment, however trifling, .for a favour bestowed and this very likely, subject to the correlative idea of exchange of gift, may have lain at the root of and contributed to the complete concept of the hiba-bil-ewaz. Thus a person desirous of bestowing an object of extraordinary value might demand from the recipient some mark of gratitude and recognition however trifling, and it would only be in the interests of the most exact use of the language that any one would quarrel with describing such a transaction as in substance a gift. If, for example, A bestows an estate worth 10,000 dirams on B, demanding from B one rupee in exchange, I apprehend that although that rupee, for form sake, be called consideration, no one would hesitate to say that A had really bestowed a very generous gift on B, and this I take to be the distinguishing characteristic, in theory at least, of the hiba-bil-ewaz contrasted with the sale. In the latter, sale as between strangers, human nature being what it is, we ordinarily expect and we ordinarily find in honest dealings that the consideration is fairly adequate, that is to say, bears a reasonable ratio to the value of the thing bought. In a hiba-bil-ewaz, theoretically at least, I should always expect to find that the consideration was wholly inadequate and out of all proportion to the property bestowed. To carry this simple illustration further, supposing a person bestows a property worth 10,000 for a consideration of 9,000, that might be called a hiba-bil-ewaz, or it might be called a sale, but in all its outward essentials it would undoubtedly be a sale and no one would hesitate to treat it as such even though a benami vendor described it in his deed as a gift. Suppose, however, he professes to give this property worth 10,000 for a consideration of 10 s., then indubitably we should have a typical gift, for although 10 Section might scarcely be called, in the language of sale, a consideration for 10,000, no 24 one, I believe, would hesitate to classify that under the Mahomedan description of gift for consideration. So far, then, by way of clearing the ground before examining in some detail some of the leading authorities which have been cited to me; but it is also necessary to point out that in all cases of hiba-bil-ewaz actual transfer of possession is not essential to validate the gift. In this respect it differs from the hiba, or simple gift, and it likewise, as far as can be gathered from the attempts of text-book writers to discriminate, differs still more curiously from the hiba-ba-shart-ui-ewaz, or gift on condition of consideration. The true gift, that is to say hiba, requires for its legal validity that the donor should give the donee actual seisin wherever that is possible.
30. I will not pause now upon the few accepted cases founded upon intelligible principles of relationships between the parties as father and child, guardian and ward. In the hiba-ba-shart-nl-ewaz, which is a gift upon future condition, the distinction which the commentators draw is that possession of a thing, that is to say, the actual seisin of the subject of the gift must be given to the donor, subject, I presume, to a right to recover, should the donor in future not fulfil the promised condition. What is curious, I say in this, is that actual delivery of seisin should be made compulsory, while the consideration is still in the future unseen and unascertained. Whereas in the hiba-bil-ewaz where the consideration is, according to the theory, present and ascertained and indeed must actually pass, delivery of seisin of the subject of gift is not essential. And the reason given for this is more curious perhaps than the distinction itself. It appears to be the opinion of those who have endeavoured to disentangle the connected ideas that the differences between the conditions which validate a hiba-ba-shart-ul-ewaz and hiba-bil-ewaz have been imposed to restrict from. But how that object is to be attained by the means I have described, which appear to me to be designed rather to further than hinder fraud, I confess I have not been able to discover.
31. However that may be, the point of first importance in this discussion of the law is that by the common consent of all authorities actual delivery of seisin is not in any case necessary to perfect the gift for consideration. On the other hand (whether this integral part of the original Mahomedan law or not I am still uncertain) it has become a settled rule of the Courts, and must be taken to be the law of this country, that actual delivery and receipt of the consideration, however small, is essential to complete and perfect a gift for consideration. If we bear all these points carefully in mind, it becomes comparatively easy to distinguish between numerous cases which have been cited both for the plaintiff and the defendant No. 2. And it will be equally easy to lay a great many of them at once out of consideration. Many of these cases are cases of simple hiba and turn upon questions of seisin, having been given or not having been given. Whereas in a case of this kind, no such issue ought properly to arise except, as I shall presently show, it be an indication of what was the real intention of the alleged donor.
32. I will first briefly notice the more important authorities to which I have been referred.
33. In the case of Ameerconissa Khatoon v. Abedoonissa Khatoon (1878) L.R. 2 IndAp 87, the decision was that under Mahomedan, law where there is on the part of a father or other guardian a real and bona fide intention to make a gift, the law would be satisfied without change of possession. That case, as I think I have already sufficiently indicated, has little or no bearing upon our present enquiry. In the first place, if there is a real and bona fide intention on the part of any one to make a gift in the form of a hiba-bil-ewaz, there can be no doubt that if the consideration were received, the gift would be valid and complete. But in this case it was not a hiba-bil-ewaz but an ordinary hiba, and the point which their Lordships had to consider was whether such a hiba-bil-ewaz could be complete without the delivery of actual seisin. That case started the law, I believe, that seisin is not necessary seven in the case of pure hiba where the relation between the parties is that of father and child, a doctrine which has been extended to the case 01 guardian and ward or even to the case of any person standing, as it is often loosely called, in loco parent-is to the donee.
34. In the case of Ranee Khajooroonissa v Mussamut Roushun Jehan , the point really turned upon the decision of a question of fact, and it was held that actual seisin had not been given so that the deed of gift was inoperative. It was further held that this was an invasion -of the Mahomedan law which prevents the testator from interfering by will with the course of devolution of property upon the heirs, and that, no doubt, is a very important consideration which underlies many of these decisions. However, in .this case, as I say in most of these cases, the decision was real upon a question of fact and, therefore, cannot be authority for the guidance of other Courts. But the observations which their Lordships make in the course of that judgment are of some interest. It is much insisted upon in this and in other cases which follow it that the very paltriness of the consideration puts the Courts particularly to strict and searching enquiry whether or not it actually passed. And that appears to imply very much what is implied in applying that kind of test, namely, the paltriness of the consideration to cases of normal sale. I have already ventured to suggest that the more relatively paltry the consideration, the greater the antecedent probability of it being hiba-bil-ewaz in theory at any rate. And if we pursue the same strain of thought a little further, it may very well be doubted whether assuming the possibility of such gifts for a consideration being made at all, the need of scrutinizing the fact whether consideration passed or not is not really diminished rather than heightened precisely as the consideration is paltry. Take again a concrete case. Assume that a Mahomedan really means to make a hiba-bil-ewaz as the law permits him to do. Suppose he wishes to give property worth a lakh of rupees to a friend or relative for a consideration of Rs. 10. Surely the probabilities, that the man who is about to receive such an enormous and disproportionate benefit, for such a trifling sum, would not risk the loss of it for want of complying with the formality which any man could comply with, are multiplied almost up to the point of certainty. And it does appear to me, speaking with the greatest respect, to be laying down a, singular principle to say that because the consideration is so small that anyone could and would easily have paid it for so great a, benefit, there is the greater need to exact the strictest proof that it actually was paid. Upon common principles it seems to me that where there is almost a moral certainty that a thing has been done, the minimum proof that it has been done is required. Suppose for the same advantage of a lakh of rupees, the consideration demanded had, been Rs. 80,000, then doubtless there would have been every reason to scrutinize, it is submitted, with increased minuteness and ease in a ratio of Rs. 80,000 to Rs. 10 whether of not that consideration was paid.
35. In Chaudhri Mandi Hasan v. Muhammad Hasan (1905) L.R. 33 IndAp 68, the alleged facts were that the plaintiff had made a deed of gift for consideration, namely 3s. 2,000 and a marriage between the donee and his niece; further, that this hiba-bil-ewaz was perfected by actual delivery of seisin. Their Lordships of the Privy Council held, accepting the concurrent findings of the Courts below on the question of fact, that the money consideration was not paid, and that no possession was given. The deed was, therefore, declared to be null and void. Their Lordships in the early part of the judgment lay down the proposition that in a gift for consideration two things are essential to validate it : (i) the payment of the consideration; and (2) a proved intention in the mind of the donor to part with the possession in presenti. Considering that the Court held that no consideration was paid (for the second consideration, the marriage was not seriously considered), it follows that one essential was wanting and therefore the alleged gift was void. But the larger part of the judgment is taken up with a discussion of the question whether or not actual seisin was given. It is submitted, with great respect, that as in a great many other cases, there is here some confusion between the two forms of gift. In a simple hiba, the essential is delivery of seisin to the donee. In a hiba-bil-ewaz this is not necessary; but the payment of the ewaz or consideration is. Nor can one form of gift be changed into the other. If the gift was in the conditional form, or for consideration, then it matters not in the least whether seisin was given or not; for this follows from their Lordships' own decision that payment of the consideration is essential. True in a hiba-bil-ewaz there is nothing to prevent the donor giving actual seisin as soon as he has received the consideration; but if he does not receive the consideration he would be entitled to treat the gift as a nullity even had he delivered possession. For it is of the essence of this kind of gift that there should be consideration. The donor might fairly say I only meant to give if I received; I gave, it is true, but I did not receive, and therefore the conveyance is a nullity. Except for the short statement that to make a hiba-bil-ewaz legal and binding, it must be proved that the consideration was paid, and (where there has been no actual delivery of possession) that it was the donor's intention to divest himself of the property given in presenti, the decision really turns upon questions of fact, and cannot therefore be used as an authority. There is, however, one additional feature, which frequently recurs in cases of the kind, and has been the subject-of judicial pronouncement. In this case the donor reserved a small sum of money for himself and his wife, during their lives, and this was held to be inconsistent with the theory of a true hiba-bil-ewaz. At least I gather that to have been their Lordships' meaning, though it is possible that this was also treated as part of the proof supporting the conclusion that the alleged gift was fictitious and never intended to be acted upon. Speaking generally a restrictive clause in such deeds of gift is sometimes treated as inconsistent with the legal validity of the gift as a whole, and sometimes the Courts express , the view that while the gift remains good the restrictive condition is inoperative. Those two views are plainly irreconcilable, and must be referred to a radical difference in apprehending the fundamental principle of this peculiar branch of the Mahomedan law. Where the gift for consideration is regarded as in fact a sale, it would appear as though the conclusion that no restrictive clause could be operative is derived from notions of English sale. But, as I took occasion to observe in an earlier part of this judgment, I think that in so far as any practical use is to be made of the analogy it should be confined to the Mahomedan law of sale. And that law would certainly treat a sale with a reservation of any part of, or right in, the property sold, as illegal. This point is of some importance, because the plaintiff much relies on a clause in this deed of gift by which restrictions upon the right of the donee to alienate the property during the lifetime of the donor are imposed. And the inclination of my own mind, notwithstanding some decided cases to the contrary, is in favour of such a contention. I think, too, that it is supported by the observations of Sir Ford North in the case I am now dealing with. I do not think that it will be necessary to rest my judgment upon that ground, but, if I am right, it would certainly be an additional and a very strong ground for me to fall back upon. What I chiefly rely on is the law that to validate a gift for consideration, in which possession is not actually given, the Court must be satisfied that the donor intended in preesenti to divest himself wholly of the possession of the property. And since so much has been said in all the text-book-writers and some of the cases about this kind of gift resembling in all points a sale, let me try to point out, precisely where there arises a very marked and real difference. I apprehend that in a sale, the vendee might at any time enforce delivery to himself. He might not do so immediately, he might wait a year or even more, but from the moment the sale was complete, supposing it to have conformed in all respects with the Mahomedan law of sale, he would have the right to call upon the vendor to surrender any day, and there could be no difficulty in establishing that right and obtaining the relief. Now if the hiba-bil-ewaz really were a sale and nothing more, what would be the point of it Why should not the donor say at once, I sell you this, instead of I give you this It is submitted that there are at least two pretty obvious reasons: (i) The inadequacy of the consideration would almost certainly be a sufficient reason for defeating the sale, if need arose later, so that the apparent donee might hesitate before parting with even the nominal sum required. (2) In a real sale the vendor knows that he might be compelled to part with his property any day; whereas under cover of the gift for consideration he may hope, and often with good reason, to accomplish his end, that is to say ensure that the nominal donee shall ultimately obtain the benefaction, without being exposed to the inconvenience of parting with it himself during his life. For, it cannot too often be repeated that, in theory, as soon as the consideration is paid, it is not incumbent upon the donor to deliver possession. And it would be idle on the part of the donee to attempt to force him to do so. If at the time of the hiba-bil-ewaz the donor does not deliver actual seisin, what is the donee to do He waits and waits. Should he grow weary of waiting and bring a suit, he would lose to a certainty. For the donor would only then have to reply, I had not the intention in presenti of parting with the property, else I would have done so. And I have not that intention now. It seems to me that that would be conclusive, and is a sufficient explanation of the popularity of this kind of anomalous gift. For what it comes to is simply this. By using this fiction a Mahomedan may succeed in evading the strict rules of succession. He may nominally give away all his property during his lifetime to some favourite, and yet in fact retain the possession of it till he dies. Such plain considerations reveal at once what is the true and the only test of a genuine hiba-bil-ewaz. If it is not proved to the complete satisfaction of the Court that it was the donor's intention, at the time of making the hiba-bil-ewaz, to part there and thence, once and for all, if the donee wished, with the property, then the Court would refuse to accept any specious form of expression in a document. It would look below the words, to the intention and meaning of the transaction. And in doing so it would have to be guided chiefly by the subsequent conduct of the parties. It is not a case, common enough in the books, of resumption. Many of these gifts are made for temporary expediency. If they are simple hibas, actual seisin may be given, and the gift is complete. But the donor is then found to recover and often retain possession for years. That is resumption, and the Courts have often, and rightly held, that where a gift is once made, and is formally complete, it cannot be deemed to have been revoked by the donor resuming possession. The surrender may have been only for a day, only for an hour, but so long as there was a gift accompanied by delivery it is final. Much has been said in the argument upon cases of that kind, and the principles upon which they rest, but it is clear that they do not ordinarily apply to a hiba-bil-ewaz. Still if the consideration has been paid, and there had been a complete surrender of possession, then, although that is not essential, yet, where it has been made, it appears to me that the hiba-bil-ewaz would be complete and final, and no resumption of possession by the donor would be effectual, any more than in the case of a simple hiba, to annul it.
36. The case of Chand Khan v. Belukkhuna Bibi (1850) S.D.R. 105 is an early case in which it was held that a contemporaneous ikrar or agreement by the donee of a very restrictive character, making the nominal hiba-bil-ewaz practically nugatory, invalidated the hiba-bil-ewaz. Compare with this Mirza Beebee v. Toola 'Beebee (1829) 4 S.D.R. 334. Here a woman gave her property in exchange for a necklace and imposed conditions on the donee against alienation, and as to devise. The Court held that this hiba-bil-ewaz, being a gift for consideration, was, according to Mahomedan law, in reality a sale; that the conditions of the deed were not binding and that, on the death of the vendee, the property would descend to her heirs, etc. I have already submitted more than one reason against the principle of that and allied decisions. I do not propose to comment on several cases which were cited in support of the proposition that where delivery of possession is otherwise essential it is dispensed with if the donor stands in certain relations to the donee, as for example, between father and son, guardian and ward, or generally in loco parentis. Because, in the first place, no delivery of possession is required here, and, in the next, I do not find upon the evidence that Aishabai stood in loco parentis to the first defendant. I hold that it is proved that she was extremely fond of him, that she gave him clothes and paid for his marriage; but his own father was alive all the time, and the child was living with him under his care. I do not think, therefore, that, were it necessary to invoke that special rule, there is any room for its application in the facts of this case. I may, however, say a word or two about the cases which have been decided in this Court.
37. Mahammad-un-nissa Begum v. J. C. Bachelor I.L.R (1905) Bom. 428: Bom. L.R. 477. I am in some doubt for what purpose this case was cited. All that the Court appears to have decided was that the transaction in dispute was not a gift because it was supported by consideration which the law regards as valuable; delivery of possession was therefore not necessary. The rest of the judgment deals with the application of Section 53 of the Transfer of Property Act. Though their Lordships do not say so, and seemingly were not reminded of the gift for consideration recognised by the Mahomedan law, they appear to have held that was such a gift.
38. Bibi Khawar Sultan v. Bibi Rukhia Sultan I.L.R (1905) Bom. 468 : 7 Bom L.R. 443 was a case between Shias and it was held that the execution of a deed of gift of immoveable property accompanied by a temporary abandonment of possession by the donor in favour-of the transferee, 'and the attornment of tenants to the transferee, is a sufficient. delivery of seisin to make the gift valid under the Mahomedan law. No one, I think, is at all likely to dispute those propositions. But in the present case, in the first place, no delivery of seisin was necessary, and, in the next, I do not find as a fact, that there was any attornment of tenants consequent upon the gift to the donee.
39. In Shaik Ibharam v. Shaik Stileman I.L.R (1884) Bom. 146 it was held that for the purposes of completing a gift of immoveable property by delivery and possession, no formal entry or actual physical departure is necessary. It is sufficient if the donor and donee are present on the premises, and an intention on the part of the donor to transfer has been unequivocally manifested. I agree, but I fail to see how this case helps the defendant in any way. If I could find that the intention of Aishabai to surrender possession in proesenti had been unequivocally manifested at the time the deed of gift was executed, then cadit qucestio. But that is precisely the point of difficulty in a case of hiba-bil-ewaz. How is that intention to be ascertained ?
40. I have already stated my conclusions upon the questions of fact; and this brief survey of the law, with some comments on particular cases, has not, I think, helped to clear the way to a decision. Briefly, I may say that I have no doubt that Aishabai meant to give this property to defendant No. 1 after her death. I have as little doubt that she meant to retain her interest in it till she died. There is, I think, no evidence worth the name that she, in fact, surrendered the property. Had she done so and had she received the consideration, then the gift would have been in all respects complete and valid. Further, I think, that I must hold, as a fact, that the nominal consideration was paid. The defendant No. 2 swears that it was; it is acknowledged on the deed, and the receipt is attested. Every probability points the same way. It is almost incredible that it should not have been paid. It was only five rupees. And the defendant No. 2 has a fairly clear idea of what the law means and requires. He was not in the least likely to leave a loophole of this sort open for want of paying five rupees. The plaintiff has made a point of the payment being out of the rents, and therefore probably, or at least possibly in law, the money of the minor donee. Now, according to Mahomedan law, if the ewaz is paid out of the minor's money, it is no payment, and the gift fails. But I do not see why I should presume that this five rupees belonged to the minor. I do not attach much importance to that technicality.
41. But while I find that Aishabai knew well what she was doing, and intended to go through the form of a hiba-bil-ewaz, I am confident that she had no intention of divesting herself of the ownership of the property as long as she lived. She continued to reside in it, to collect the rents, to spend money on the repairs, right up to her death. Indeed her suicide, if it was suicide, was due to mental worry about a decree which had been obtained against her and the first defendant jointly for moneys advanced to repair the house. And I believe that the plaintiff's suggestion, explaining how, when the decree was satisfied by the second defendant after her death, the decree-holder made an endorsement showing that she was only sued as surety, is true. There was no mutation of names consequent on the gift. And although it has often been held that entries of that kind in Government records are not evidence of title, yet the fact along with other facts helps to swell the volume of proof supporting my conclusion. Now, in spite of the extreme theoretical vagueness, in which this form of gift is shrouded, one thing, I think, is clear and certain, that Mahomedans may not avail themselves of it to defeat their own law of succession. And that is exactly what I believe Aishaibai intended to do. She meant to retain the property as long as she lived, and then secure its transmission under cover of this gift to her pet nephew after her death to the exclusion of her heirs. It is true that delivery of possession is not essential to the legal validity of such a gift; but that must be understood reasonably. If a man at twenty make a to some favourite coupled with a private understanding that it is not to be acted upon till he dies, and if, then, he lives to ninety, would any Court say that he had the intention in prcesenti, that is, at the age of twenty, of divesting himself of property which, in fact, he continued to enjoy for seventy years As the doctrine stands, it lends itself only too readily to abuse. Using it is an easy and effective way, or certainly may be, of evading the law of succession. And when Courts find that in fact so called gifts of this kind have not been acted upon till the death of the donor, they would, I apprehend, incline very strongly to hold that the gift was merely a cloke, and that, if effect were given to it, it would be allowing the donor to make a will in direct contravention of the law. For these reasons I hold that the gift was null and void, and that the defence fails.
42. Decree for the plaintiff and defendants 4 to 7. They are entitled to a moiety of the house, that is to say, what belonged to the deceased Aishabai.
43. The Court passes the usual administration decree. Suit to be referred to the Commissioner for the purpose of effecting partition and distribution. Defendant No. 2 to account to parties for all the rents and profits recovered by him since the death of Aishabai. Liberty to apply. Further directions and costs reserved.
44. The 1st and and defendants to pay the costs of the plaintiff, and the 4th and other defendants jointly up to the time the defence of limitation was abandoned. From which time onwards, the costs to be borne by defendant No. 1 alone.