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Hafiza Bibi Vs. Sahib-un-nissa Bibi - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtAllahabad High Court
Decided On
Judge
Reported in(1887)ILR9All213
AppellantHafiza Bibi;hafiza Bibi
RespondentSahib-un-nissa Bibi;sahib-un-nissa Bibi
Excerpt:
.....to that assignment. he also says the gift was bad because abdul rahman purported to give the whole right to receive the pension when he was only entitled to receive a portion of it; and that the gift was not perfect, and was invalid according to muhammadan law, because abdul rahman did not cause mutation of names in the government register. by that section, which enacts the law for the muhammadans as well as the hindus, it is enacted that every such pension shall be capable of alienation and descent. , the principle of musha or undivided part, and not to cases like this, where the interest itself is separate. i should be very loth to hold in a case of this kind, in which a man having a definite ascertained interest in a pension and intending at any rate to pass his interest to his wife,..........plaintiff was then heard. the grounds stated in the memorandum of appeal were as follows:1. the gift of pension alleged to have been made by abdul rahman to his wife sahib-un-nissa is void under the muhammadan law:(a) because it is a gift of 'musha.'(b) because there was no delivery or seisin.(c) because the donor had not entirely relinquished his right in the pension.(d) because the gift included shares which did not belong to the donor.2. the right to receive a pension from the government is not transferable by gift under the muhammadan law.3. the assignment of pension is void under the provisions of act xxiii of 1871.5. the hon. t. conlan and mr. amiruddin, for the appellant.6. mr. c. h. hill and pandit sundar lal, for the respondent.edge, c j.7. this is an appeal from the judgment.....
Judgment:

John Edge, Kt., C.J.

1. This is an appeal against the judgment of the Judge of Allahabad, who confirmed the decree of the Subordinate Judge. The action was one for the establishment of the plaintiff's right to receive a share in pension which is payable by the Government, and which was originally granted by the Kings of Dehli to particular persons. A portion of the case of the defendant was that Abdul Rahman, in 1879, was in receipt of the whole pension, although only entitled to receive a portion of it; and was, de facto, receiving the whole of it, and that he assigned the whole to his wife. It is contended that the assignment was a good assignment in law of the interest of the plaintiff, who was not party to that assignment. I do not understand that contention. The Judge is quite right in holding that Abdul Rahman could assign nothing more than his own interest. He had no power to assign, and his assignee could take nothing more than his interest.

2. As regards the statute of limitation, I feel considerable doubts whether in a case of this kind, and between parties such as are here, that statute would apply at all. This is not a sum of money which was payable by one person to another. It is merely a right of several persons to draw their respective shares of pension from the Government. It appears to me that if the statute were applicable, it would be applicable in the hands of the person who had to pay. Even if it does apply to the present parties, then of all the articles enumerated in Schedule ii of the Limitation Act, we should apply either Article 127 or Article 131, in which the period is twelve years. The Judge in his judgment has found that the plaintiff did receive her share within that time, and that finding of fact is sufficient to take this case out of the Limitation Act. For these reasons I am of opinion that the appeal should be dismissed with costs.

Brodhurst, J.

3. I entirely concur with the learned Chief Justice in dismissing the appeal with costs.

4. The appeal of the plaintiff was then heard. The grounds stated in the memorandum of appeal were as follows:

1. The gift of pension alleged to have been made by Abdul Rahman to his wife Sahib-un-nissa is void under the Muhammadan law:

(a) Because it is a gift of 'musha.'

(b) Because there was no delivery or seisin.

(c) Because the donor had not entirely relinquished his right in the pension.

(d) Because the gift included shares which did not belong to the donor.

2. The right to receive a pension from the Government is not transferable by gift under the Muhammadan law.

3. The assignment of pension is void under the provisions of Act XXIII of 1871.

5. The Hon. T. Conlan and Mr. Amiruddin, for the Appellant.

6. Mr. C. H. Hill and Pandit Sundar Lal, for the Respondent.

Edge, C J.

7. This is an appeal from the judgment of the Judge of Allahabad who decided chat Abdul Rahman's share in the pension which had been given by the Native Government had passed to the defendant, Musammat Sahib-un-nissa Bibi.

8. In appeal every possible point has been taken by Mr. Amiruddin. He has alleged that a pension cannot be a subject of gift; be says also that the gift became void because the subject-matter of it was not divided, i.e., the right to receive pension was not divided. He also says the gift was bad because Abdul Rahman purported to give the whole right to receive the pension when he was only entitled to receive a portion of it; and that the gift was not perfect, and was invalid according to Muhammadan law, because Abdul Rahman did not cause mutation of names in the Government register. Mr. Amiruddin further argued that the mutation of names was essential to the validity of the alleged gift. I think, broadly speaking, the points I have mentioned above cover all the points of law which Mr. Amiruddin has raised before us.

9. Now, to deal with them in the order I have just mentioned, it is necessary to consider whether a pension can be a subject of gift between the Muhammadans. With regard be that, we ought to see what this pension was. It was, to use the language of the words of Section 7 of the Act XXIII of 1871, 'an indemnity for loss sustained by the resumption by a Native Government of lands held under sanads purporting to confer a right in perpetuity.' It was not a pension in the ordinary acceptance of the term, but it was what was contemplated by Section 7 of the Indian Pensions Act. By that section, which enacts the law for the Muhammadans as well as the Hindus, it is enacted that every such pension shall be capable of alienation and descent.' A 'gift' is an 'alienation' as much as is a 'sale.' Therefore I am of opinion, whatever the Muhammadan law may be apart from the Pensions Act, that under that section this pension, or any interest in it, was capable of being alienated by Abdul Rahman by way of gilt. I also might say that if Mr. Amiruddin's arguments were correct, there could be no gift of the right to take tolls at bridges and ferries. According to his contention, until the cash was payable or paid, there could be no gift of the tolls. In my judgment, it is the right to have the pension paid which was the subject of the gift in a case of this kind, and not the cash. So much, therefore, for the contention that a pension cannot be a subject-matter of gift.

10. The next point which Mr. Amiruddin takes is that the gift becomes void because the right was not divided. I really do not understand what the meaning of char, is That contention arises from confusing the case of this kind of a right to receive a pension with the case of a bale of cloth, or a piece of land,, or a house. In the case of a right to receive a pension, the rights of the individuals who are the heirs become at once divided and separate at the death of the sole owner. Thus, if there were three heirs entitled to one-third each, one becomes entitled at once to his share, namely, one-third, on the death of the ancestor, and there arises no necessity of partition in such a case. That argument fails because, as a matter of fact, in my opinion, the subject-matter of the gift was already divided.

11. Mr. Amiruddin also contends that the whole gift was void because Abdul Rahman purported to give more than he was entitled to. He has cited the Tagore Law Lectures for 1884, p. 84, and Macnaghten's Principles of Muhammadan Law, Chapter IV, in support of that contention. Mr. Amir Ali, at page 84 of his Lectures, says: 'If one should give a mansion, of which possession is taken, and a right then established in a part of it, the gift is void. And if one should give land with the crop on it, or a tree with the fruit on it, and make delivery of both, and a right should then be established in the crop or the fruit, the gift in the land or tree is void. A person makes a gift of his land with the crop on it, and cuts and delivers the crop, after which a right is established in one of them, the gift is void as to the other.' Now with regard to the above oases, it has been correctly pointed out by Pandit Sundar Lal that the text lays down no such proposition of Muhammadan law as that contended for by Mr. Amiruddin. He really tries by arguing from those cases to establish a novel principle in Muhammadan law not found in the text. What seems to have been before the learned lecturer was the question of a gift vitiated by musha, and the cases which were cited by Mr. Amiruddin were merely the cases of musha. Therefore I consider, so far as that is concerned, they do not establish Mr. Amiruddin's point. He relies also upon Chapter IV of Macnaghten's Principles of Muhammadan Law. He refers us to the marginal note to reply No. 2 at page 200: 'A gift of more than the owner's right is void, but a sale is void to the extent of the right.' That note appears to me to be framed in very confused language, and, looking at it cursorily, one would take it as laying down that where a man gives more than he is entitled to give, the whole gift is void. The text of the question No. 2, to which this reply relates, is: 'If any one of the widows or their heirs should dispose of a portion of the land which belonged to their deceased husband, by gift or sale, would such sale or gift be valid to any extent?' That reply, therefore, relates to the special persons referred to in the above question, and does not lay down a general proposition of law. Then again it seems to me to be based upon the same principle as is referred to in the Tagore Law Lectures, i.e., the principle of musha or undivided part, and not to cases like this, where the interest itself is separate. Even if it were the strict Muhammadan law that in a case such as this, where a man gives more than he is entitled to, the whole gift becomes void, there is a ruling of this High Court--Shumsh-ool-nissa v. Zohra Beebee, N.-W.P.H.C. Rep , 1874, p. 2, to the effect that Section 24 of the Bengal Civil Courts Act (VI of 1871) does not compel us to apply the strict Muhammadan law in cases of gifts in transactions of modern times. I should be very loth to hold in a case of this kind, in which a man having a definite ascertained interest in a pension and intending at any rate to pass his interest to his wife, purported to give her more than he was entitled to, that he failed to give her any interest at all.

12. The last point which Mr. Amiruddin contends is, that the gift was not perfected by possession. It appears to me quite clear that, according to Muhammadan Law, possession is necessary to make a gift perfect, where the nature of the transaction is such that possession is possible. But how can possession be given of a right to receive pension unless it is by handing over the documents of title connected with the pension, or assigning the right to receive the pension? In this particular case it is admitted that Abdul Rahman did execute a deed of gift, assigning certainly the whole pension, but which was quite sufficient to cover his own interest. In addition, it might be mentioned that he was actually in receipt of the whole pension, and he seems to have had in his possession certain papers or sanads and coupons that would be presented to Government at the time of receiving the pension. He handed over to his wife the deed and the papers or sanads, and it appears to me that he there and then made a perfect gift, and gave a perfect title to the right to receive the pension, so far as his interest in it extended. Mr. Amiruddin is forced to contend, for the purposes of his case, that the gift was not perfect, as there was no mutation of names in the treasury register; and that in a case of this kind the effecting of a mutation of names in the registers would be equivalent to giving possession. I asked him to point out any law from which such a proposition could be inferred, and he failed to do so. The gift, it appears to me, was perfect as soon as the deed was executed and handed over with the papers to the donee. The mutation of names was merely a thing that would follow on the perfection of the title, and doss not in itself in any way go to make the title or form part of the title. In my opinion Abdul Rahman did comply with all the requirements of the Muhammadan Law by making the deed and banding it over to his wife. In connection with this, I may also refer to Baillie's Digest of Muhammadan Law, p. 517: 'The confusion that invalidates a gift is one that is original, not supervenient, as, for instance, when one has given the whole of a thing, and subsequently revokes a half or other undivided share of it, or a right is established to a half or other undivided share of it, the gift is not invalidated as to the remainder.' In this particular case those shares were definite and ascertained, and did not require any further separation than was already effected upon the death of the sole owner.

13. Under these circumstances, I think the judgment of the Court below is right, and the appeal must be dismissed with costs.

Brodhurst, J.

14. I entirely concur with the learned Chief Justice in dismissing the appeal with costs.


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