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Mohib-ullah Vs. Abdul Khalik and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in(1908)ILR30All250
AppellantMohib-ullah
RespondentAbdul Khalik and ors.
Excerpt:
muhammadan law - gift--hiba bil mushaa--possession. - .....april 1906, gave the house in equal shares to his daughters-in-law musammat haliman and musammat ayesha. ayesha is dead, and the appellant mohibullah is her son and heir. musammat haliman and mohibullah objected to the attachment. haliman's objection as to her half was overruled by the munsif on the ground that at the time of the gift she was on a pilgrimage to mecca and so did not get possession of the property. the learned munsif found that ayesha had got possession of her half share and sustained the objection of mohibullah. on appeal by the decree-holders the learned subordinate judge found that the gift in favour of ayesha was invalid according to muhammadan law and overruled mohibullah's objection. mohib-ullah comes here in second appeal. the learned subordinate judge does not.....
Judgment:

Aikman, J.

1. The respondents attached a house as belonging to their judgment-debtor, Wali Muhammad, against whom they had obtained a decree. The house had belonged to Ghazi the father of Wali Muhammad. It is proved that Ghazi by a deed of gift executed on the 6th of April 1906, gave the house in equal shares to his daughters-in-law Musammat Haliman and Musammat Ayesha. Ayesha is dead, and the appellant Mohibullah is her son and heir. Musammat Haliman and Mohibullah objected to the attachment. Haliman's objection as to her half was overruled by the Munsif on the ground that at the time of the gift she was on a pilgrimage to Mecca and so did not get possession of the property. The learned Munsif found that Ayesha had got possession of her half share and sustained the objection of Mohibullah. On appeal by the decree-holders the learned Subordinate Judge found that the gift in favour of Ayesha was invalid according to Muhammadan law and overruled Mohibullah's objection. Mohib-ullah comes here in second appeal. The learned Subordinate Judge does not dissent from the finding that Ayesha got possession of her half, but he says that 'the delivery of possession to Musammat Ayesha of the one moiety gifted away to her did not confer any right on her,' The learned vakil for the appellant relies on what was said by their Lordships of the Privy Council in the case Muhammad Mumtaz Ahmad v. Zubaida Jan (1889) I.L.R. 11 All. 460 at pages 474 and 475 of their judgment. Their Lordships, referring to the authorities cited by Syed Ameer Ali in his Tagore Lectures of 1884, say: 'The authorities show that possession taken under an invalid gift of mushaa transfers the property according to the doctrines of both Shia and Sunni Schools.' They add: 'The doctrine relating to the invalidity of gifts of mushaa is wholly unadapted to a progressive state of society and ought to bo confined within the strictest rules.' At page 42, Vol. I, of Ameer Ali's Muhammadan Law, 3rd edition, the author remarks: 'A hiba bil mushaa or gift of an undivided joint property, is not void, but only invalid, and possession remedies the defect.' He goes on to cite various authorities in support of this view. The learned advocate for the respondents refers to the cases cited on page 434 of Macnaghten's Principles of Muhammadan Law and also to the opinion expressed by that author in paragraph 6, Chapter 5, page 50. It is not easy to reconcile all the authorities, but having regard to the findings of the Courts below that Ayesha did get possession of her half, and to the passage cited from the judgment of the Privy Council, I am of opinion that the appeal must succeed. I accordingly set aside the order of the Court below and restore the order of the Court of first instance. The appellant will have his costs here and in the Court below.


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