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Tavakalbhai Walad Sultanbhai Vs. Imatiyaj Begam Javje Mirbanesaheb - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1917)ILR41Bom372
AppellantTavakalbhai Walad Sultanbhai
Respondentimatiyaj Begam Javje Mirbanesaheb
Excerpt:
mahomedan law - deed of gift--gift with a condition attached--obligation in the nature of trust--construction of document. - - 517 that the gift is good and complete under the mahomedan law, and that upon the authority of lali jan v. 517 shows that the courts should enforce obligations in the nature of trust against persons in possession of property, even though they be mahomedans, and it is shown clearly by mr......dated the 5th of august 1889, one umrao bibi purported to make a gift in favour of three persons, mirza vazir beg, imatiyaj begum and chaggan bibi, of certain inam lands. she stated that 'the lands have been given to you three as gifts. all my rights of ownership are transferred to you. the vahiwat or management of the lands should be made by one of you three, namely vazir beg, and after paying government dues, rs. 40 should be paid out of the residue of the income annually to imatiyaj begum, and the remainder should be devided equally between mirza vazir beg and chaggan bibi. mirza vazir beg should have vahiwat and give income according to their shares to the two. they have no right of claiming division of the lands from mirza beg, but only a right of claiming income every year.'2......
Judgment:

Basil Scott, Kt., C.J.

1. By a document dated the 5th of August 1889, one Umrao Bibi purported to make a gift in favour of three persons, Mirza Vazir Beg, Imatiyaj Begum and Chaggan Bibi, of certain Inam lands. She stated that 'the lands have been given to you three as gifts. All my rights of ownership are transferred to you. The Vahiwat or management of the lands should be made by one of you three, namely Vazir Beg, and after paying Government dues, Rs. 40 should be paid out of the residue of the income annually to Imatiyaj Begum, and the remainder should be devided equally between Mirza Vazir Beg and Chaggan Bibi. Mirza Vazir Beg should have Vahiwat and give income according to their shares to the two. They have no right of claiming division of the lands from Mirza Beg, but only a right of claiming income every year.'

2. Mirza Beg's interest in the property has now passed to the second defendant who contends that the deed of gift in so far as it conferred benefits on the two women mentioned therein is void, and that he is absolutely entitled. This suit is brought by Imatiyaj Begum to enforce her rights under the deed of gift.

3. The learned Judge of the lower appellate Court has held, upon the authority of Nawab Umjad Ally Khan v. Mussumat Mohumdee Begum (1867) 11 M.I.A. 517 that the gift is good and complete under the Mahomedan Law, and that upon the authority of Lali Jan v. Muhammad Shafi Khan (1912) 34 All. 478 the deed can be supported in favour of the plaintiff. The last mentioned case is very similar to the present, being a gift in favour of an individual, subject to a condition of payment of one-third of the income to another individual. A suit by the last named beneficiary was brought against the assignee of the other donee. The learned Judges of the Allahabad High Court held that the conclusion of the trial Judge in favour of the donee of one-third was supported by the decision of the Privy Council in Nawab, Umjad Ally Khan v. Mussumat Mohumdee Begum (1867) 11 M.I.A. 517 and that though that was a case between Shias, the rule was considered as applying equally to Shias and Sunnis. The case here is between Sunnis.

4. It is contended on behalf of the appellant that this Court must follow the ruling in Amtul Nissa v. Mir Nurudin. (1896) 22 Bom. 489 That, however, was a case distinguishable from the present. A Mahomedan there executed a deed of gift in favour of his wife by which he agreed to give her and her heirs in perpetuity a sum of Rs. 4,000 per annum out of his undivided share in certain Jaghir villages which he had inherited from his father, and it was held that the deed of gift was invalid, as it was a gift in effect of a portion of the future revenues of the villages to the extent of Rs. 4,000 per annum. In the present case Mirza Vazir Beg accepted the lands, the subject of the gift from Umrao Bibi, and took the benefit of one moiety of the residue of the income on the condition that he would pay a specified annual sum to the present plaintiff, and a moiety of the residue of the income to Chaggan Bibi. That was the condition upon which he took the property, and that was the obligation attaching to the property in his hands or in the hands of those claiming under him with notice. The decision of the Privy Council in Nawab Umjad Ally Khan v. Mussumat Mohumdee Begum (1867) 11 M.I.A. 517 shows that the Courts should enforce obligations in the nature of trust against persons in possession of property, even though they be Mahomedans, and it is shown clearly by Mr. Faiz Tyabji in his comments upon that decision in paragraph 408 of his book on Mahomedan Law that the conclusion of the Privy Council was entirely in accord with the views of the Prophet. The passage from the Koran cited by Mr. Tyabji is as follows: 'It is of no avail that ye turn your faces (in prayer) towards the East and the West, but righteousness is in...those Who perform their engagements in which they have engaged...these are the true and these are the pious.' For these reasons we affirm the decree of the lower appellate Court and dismiss the appeal with costs.


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