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In Re: Khalil Ahmad and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in(1908)ILR30All309
AppellantIn Re: Khalil Ahmad and anr.
Excerpt:
muhammadan law - gift--usufruct--ariat. - - --it is manifest that the intention was to transfer to the lady the right to enjoy the usufruct of the property for her life......an ariat, and therefore invalid.' it is said that we were wrong in saying in our judgment that an ariat is invalid and we are asked to expunge the word 'invalid' and substitute for it the word 'valid.' strictly speaking, this application for review of judgment is not maintainable under section 623 of the code of civil procedure, as the applicant was not aggrieved by the decree or order passed in the case, but as the expression 'therefore invalid' may lead persons to think that in our opinion a grant known as an ariat in muhammadan law is invalid, we think the matter should be considered by us. speaking for myself i think the word 'invalid' erroneously crept into the judgment. what we meant to bold, and did hold, was that the transfer was not an absolute gift so that any limitation or.....
Judgment:

Banerji, J.

1. This is an application for a review of the judgment passed by us in this case on 16th November 1905. In that judgment, which is reported in I. L. R., 28 All. 264, the following passage occurs;--' It is manifest that the intention was to transfer to the lady the right to enjoy the usufruct of the property for her life. This under the Muhammadan law would be what is known as an ariat, and therefore invalid.' It is said that we were wrong in saying in our judgment that an ariat is invalid and we are asked to expunge the word 'invalid' and substitute for it the word 'valid.' Strictly speaking, this application for review of judgment is not maintainable under Section 623 of the Code of Civil Procedure, as the applicant was not aggrieved by the decree or order passed in the case, but as the expression 'therefore invalid' may lead persons to think that in our opinion a grant known as an ariat in Muhammadan law is invalid, we think the matter should be considered by us. Speaking for myself I think the word 'invalid' erroneously crept into the judgment. What we meant to bold, and did hold, was that the transfer was not an absolute gift so that any limitation or condition limiting it would be void under the Muhammadan law, but that taking the transaction as a whole it was a grant of the usufruct of the property to Musammat Habib-un-nissa for her life. This is what is known in Muhammadan law as an ariat (vide Ameer Ali's Muhammadan Law, p. 79). An ariat is not invalid according to Muhammadan Law, and we did not mean to hold that the transfer in the present case being an ariat was invalid. All that we intended to decide was that it was not an absolute gift, but was what is known to Muhammadan law as an ariat. In order to remove all misconception I think the words 'therefore invalid' should be expunged from the judgment and I would order accordingly.

Richards, J.

2. I also think that an inaccurate expression has crept into the judgment. The suit was brought to recover possession of certain property. The plaintiffs claimed as heirs of Niaz Ali. The defendant defended the suit as transferee of Musammat Habib-un-nissa, wife of Niaz Ali. Niaz Ali had made an application in the Revenue Court for mutation of names in favour of Musammat Habib-un-nissa. The defendant claimed that the result of that application in the Revenue Court was to confer an absolute estate on Musammat Habib-un-nissa, at least this was the only contention in the appeal before us. We had therefore to decide only the question whether Musammat Habib-un-nissa had acquired an absolute estate. We decided that the transaction amounted to no more than a grant of an ariat to Musammat Habib-un-nissa, and that accordingly the defendant could not rely on a transfer from Musammat Habib-un-nissa as a complete transfer of the entire estate in the property. We intended to decide that question and no other', and if the judgment is corrected in the way pointed out by my learned brother it will be free from all ambiguity. I therefore concur in the order passed by him,

3. We allow the application so far that we direct that the words, 'and therefore invalid' be expunged from the judgment. Having regard to the circumstances of the case we make no order as to costs.


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