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Ghafur-un-nissa Vs. Maqbul Husain - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAllahabad
Decided On
Judge
Reported in(1914)ILR36All333
AppellantGhafur-un-nissa
RespondentMaqbul Husain
Excerpt:
muhammadan law - gift--revocation--substantial alteration of subject-matter-partition. - .....appeal arises in a brought by the plaintiff foe possession of certain property and revocation of a deed of gift in respect of it executed by her in favour of the defendant appellant. her case as set forth in the plaint was that she had no counsellor or adviser except the defendant, and that the defendant had induced her to make the deed, or gift in his favour having led her to believe that he would always remain obedient and faithful to her and would defray all her expenses. it has been found by both the courts below that the plaintiff was aware of the terms of the deed of gift and that no fraud has been proved. we cannot, however, overlook the fact that by the gift she divested herself of everything she had and left herself completely at the mercy of the defendant. under such.....
Judgment:

Henry Richards, C.J. and Pramada Charan Banerji, J.

1. This appeal arises in a brought by the plaintiff foe possession of certain property and revocation of a deed of gift in respect of it executed by her in favour of the defendant appellant. Her case as set forth in the plaint was that she had no counsellor or adviser except the defendant, and that the defendant had induced her to make the deed, or gift in his favour having led her to believe that he would always remain obedient and faithful to her and would defray all her expenses. It has been found by both the courts below that the plaintiff was aware of the terms of the deed of gift and that no fraud has been proved. We cannot, however, overlook the fact that by the gift she divested herself of everything she had and left herself completely at the mercy of the defendant. Under such circumstances very clear and cogent evidence should have been given to show that she understood the nature of the transaction and its effect upon her interests. Under the Muhammadan Law, by which the parties are governed, a donor has a right to revoke gift, except in the cases specified at page 152 of Volume I Ameer Ali's Muhammadan Law. The defendant appellant contends that this case tails within the purview of Clause (f) viz. that the subject-matter of the gift has altered in substance in the possession of the donee. What happened was this. According to the court of first instance two villages comprised in the gift had been partitioned at the instance of the defendant before the institution of the suit, and for this reason that court excluded those village from the operation of its decree. The lower appellate court held that only one village had been partitioned before the suit was filed and excluded that village only from the decree. We are unable to agree with the view of the court below in this respect. There has in our opinion been no substantial alteration of the subject-matter of the gift in the possession of the donee. The property at one time formed part of a bigger mahal; by a partition smaller mahals have been formed, and the property in dispute is now part of one of the smaller mahals. The only difference is that the plaintiff has become a co-sharer of a smaller mahal instead of the bigger mahal. There has been no alteration in the nature of the property. The property exists where it was. We think that the courts below have erred in holding that the gift could not be revoked by the plaintiff.

2. One other point was raised on behalf of the appellant, viz. that house No. 1320 had not been claimed in the plaint. This is true, but this house is included in the deed' of gift and the plaintiff sought to set aside the whole gift. In the lower appellate court the point does not seem to have been pressed and in out opinion there is nothing in it.

3. The result is that we dismiss the appeal, and, allowing the objection filed on behalf of the respondent, decree the plaintiff's claim in full. Having regard to the fact that the plaintiff gave false evidence in the court of first instance and tried to support her claim by untrue evidence, we direct the parties to bear their own costs in all courts.


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