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Someshwar Vs. Barkat Ullah and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1464 of 1953
Judge
Reported inAIR1963All469
ActsMuhammadan Law; Uttar Pradesh High Courts (Amalgamation) Order, 1948 - Article 9
AppellantSomeshwar
RespondentBarkat Ullah and ors.
Appellant AdvocateN.D. Ojha and ;G.P. Bhargava, Advs.
Respondent AdvocateM.Y. Siddiqui, Adv.
DispositionAppeal dismissed
Excerpt:
.....each of whom is alternatively a donor and a dojiee and that it does not include the case of a gift in consideration only of natural love and affection or of services or favours rendered. was of the view that the law laid down in ilr 11 all 1 was the correct view, and that a gift which is made in consideration only of natural love and affection or of services or favours rendered does not fan under the category of hiba-bil-iwaz. such a transaction is recognised as a good hiba-bil-iwaz amongst sunni muhammadans governed by the hanafi law in india. if he is moved by that consideration and is inclined to make a gift of property either in his favour or in favour of his son at any time in the future, the gift is not in lieu of any iwaz, though the consideration of love and affection for..........in court, and if, therefore, the gift in favour of the appellant was a mere hiba and not hiba-bil-iwaz, hamid ali was entitled to revoke it by mere declaration and in that view this contention has no force. the appellants' contention was that the death of hamid ali during the pendency of the suit, i.e., before the suit was decreed, would make the suit for revocation ineffective. since the donor was a shia, 3 decree for revocation of the gift was not necessary. mere declaration on his part that the gift was revoked is enough.7. the question, however, is whether the gift was a hiba or a hiba-bil-iwaz. it purports to have been made in favour of someshwar in consideration of the services rendered by his father kallu kachhi for a period of 25 or 30 years in respect of tahsil wasul.....
Judgment:

S.D. Singh, J.

1. This is a defendant's appeal arising out of suit No. 514 of 1945 of the Court of Munsif, East, Allahabad. The suit was filed by three persons Hamid Ali, Barkat Ullah and Nawab Hasan. There are two defendants in the suit, Someshwar and his father Kallu.

2. What happened was that Hamid Ali, a Shia muslim, made a gift of the property in question in favour of Someshwar on 21st April, 1945. Later he executed a sale deed in respect of this very property along with some other on 6th September, 1945, in favour of Barkat Ullah and Nawab Hasan, plaintiffs 2 and 3 in the suit. Someshwar filed a suit for preemption on the basis of that sale deed in respect of property other than the one covered by the gift deed, that suit for pre-emption being suit No. 470 of 1946; and Hamid Ali, Barkat A!i and Nawab Hasan filed this suit, No. 514 of 1945, for the cancellation of the gift deed on the ground that it was revoked by Hamid Ali and for possession over the property, in case the plaintiffs were found to be out of possession.

3. As this suit filed by Hamid Ali and others was decreed by the trial Court, the suit for pre-emption was dismissed. An appeal was filed against the dismissal of that suit, but it became infructuous after the abolition of zamindari in this State, and we are not, therefore, concerned with that dispute between the parties any more.

4. It was contended on behalf of the appellant before the trial Court as wefl as in first appeal that the gift in his favour was a hiba-bil-iwaz and was not, therefore, liable to be revoked. It was further contended that the appellant being a Hindu the muslim law relating to revocation of a gift did not apply to him, and that the gift-made in his favour by the respondents couid not be revoked. These were the two points along with two other minor points to which reference will be made later, which were pressed in this appeal and no reference may, therefore, be made to the other allegations of the parties.

5. It has been held by the Courts below that the gift in favour of Someshwar was not a hiba-bil-iwaz, but a hiba, pure and simple, and it has further been held that it will be the muslim law applicable to the revocation of such gift, which will be applicable to the facts of the case, even though the donee is a Hindu; and it was on the basis of these findings that the suit was decreed by the trial Court, and that decree was upheld in first appeal.

6. Hamid Ali died during the pendency of the suit, and one of the points raised during the hearing of this appeal was if the right to revoke the gift survived. The parties were agreed that the donor Hamid Ali, was a Shia; and, therefore, to the extent the Shia law relating to gifts differs from the general Mohammadan Law, it will be that law which will apply. Under the Shia law a donor may revoke a gift by mere declaration without any proceedings in Court, and if, therefore, the gift in favour of the appellant was a mere hiba and not hiba-bil-iwaz, Hamid Ali was entitled to revoke it by mere declaration and in that view this contention has no force. The appellants' contention was that the death of Hamid Ali during the pendency of the suit, i.e., before the suit was decreed, would make the suit for revocation ineffective. Since the donor was a Shia, 3 decree for revocation of the gift was not necessary. Mere declaration on his part that the gift was revoked is enough.

7. The question, however, is whether the gift was a hiba or a hiba-bil-iwaz. It purports to have been made in favour of Someshwar in consideration of the services rendered by his father Kallu Kachhi for a period of 25 or 30 years in respect of tahsil wasul (collection work). Hamid Ali said in the gift deed that he was very much pleased witn the discharge of duties by him and wanted to compensate him for it. The gift was, therefore, made in consideration of the faithful discharge of duties by Someshwar's father during a period of 25 or 30 years. There is no indication in the gift deed that Kallu was serving Hamid Ali gratis, i.e., without any payment. He said at one place: 'Uske khidmatguzari se bahut khush nun.' These words would indicate that Kallu was in the service of Hamid Ali and he was very much pleased with the discharge of his duties as such. The question is whether the gift made to the son of an ex-employee or even a present employee in consideration ot the faithful discharge of his services would be a gift with or without any consideration. But 'consideration' for purposes of this discussion has to be understood in the sense of 'iwaz' under the Mohammadan Law, for even love and affection on regard for past services would be 'consideration' under the Contract Act, or even for purposes of transfer of properties governed by the Transfer of Property Act.

8. There is only one decision of this Court on the point, Rahim Baksh v. Muhammad Hasan, 1LR 11 All 1. It was held by Straight and Mohmood, JJ. that the conception of hiba-bil-iwaz, as understood in the Muhammadan Law, is (sic) it is a transaction made up of two separate acts ot (sic)tion, i.e., of mutual or reciprocal gift of specific pro-(sic)erifi between two persons, each of whom is alternatively a donor and a dojiee and that it does not include the case of a gift in consideration only of natural love and affection or of services or favours rendered. Reference is made in the body of the judgment to Baillie's Digest of Mohammadan Law. On page 532 of the 1865 edition ol that book, Baillie mentions:

'The iwaz, or exchange in gift is of two kinds -- one subsequent to the contract, the other stipulated for in it.' It means, therefore, that the iwaz, which is to be aavancea for a gift or is to be a consideration for it, must come either at the time the gift is made or be subsequent to it.

9. Reference was made to two decisions of the Oudh Chief Court, one reported in Imdad Ali v. Ahmad Ali and the other in Lal Bibi v. Masum Ali Khan, 38 Ind Cas 794: {AIR 1917 Oudh 347). In Imdad Ali's case there was difference or opinion between Dalai, J. C. and Wazir Hasan, A.J.C. on this point. Dalai, J. C. was of the view that the law laid down in ILR 11 All 1 was the correct view, and that a gift which is made in consideration only of natural love and affection or of services or favours rendered does not fan under the category of hiba-bil-iwaz. Wazir Hasan, A.J.C., however, took a different view and relied for the purpose on the other case, 38 Ind Cas 794: (AIR 1917 Oudh 347) (supra). In Lal Bibi's case, 38 Ind Cas 794= (AIR 1917 Oudh 47) it was pointed out by Stuart, J. C., that in some cases past services may provide adequate consideration for a gift; and it appears that to some extent, the view taken by him is, if I may say so with respect, correct. Where services are rendered in the past, not gratis but with a view to be remunerated in future these services create a monetary obligation on the person in whose favour such services were rendered; and if in order to discharge that pecuniary liability or obligation he makes a gift, that gift would not be a gift pure and simple but a hiba-bil-iwaz as understood under the Mohammadan Law. Stuart, J. C. gives an illustration which brings out the import of the sense in which he wanted to understand the past services. He stated:

'No one can doubt that 'fact in the case of the services of a physician. Where a physician has attended a patient and. has up to a certain time charged nothing tor his services, it may still be open to him to bring a claim in respect of such services. If the patient chooses to assign property to the physician in consideration of the money value of the services which the physician has rendered him (with respect to which the physician could tile a claim against him), the case would be very similar to the case where a woman foregoes her claim to dower debt against her husband receiving in return a grant of property. Such a transaction is recognised as a good hiba-bil-iwaz amongst Sunni Muhammadans governed by the Hanafi Law in India. If past services are of this nature, they must provide adequate consideration for a gift so as to make it a hiba-bil-iwaz. The view expressed by Wazir Hasan, A.J.C. in should not therefore, go beyond it. It cannot, therefore, be said that even according to the view taken by Stuart, J. C. or Wazir Hasan, A.J.C. (as they then were), past services of whatever nature would be regarded as iwaz so as to make a gift a hiba-bil-iwaz. The services of an employes are of a different nature. He is adequately paid lor the same. If during the course of his employment lie has been faithfully discharging his duties his employer would no doubt be pleased with him. If he is moved by that consideration and is inclined to make a gift of property either in his favour or in favour of his son at any time in the future, the gift is not in lieu of any iwaz, though the consideration of love and affection for the employee would stiil be there. In that sense the view taken by in ILR 11 All 1 should prevail. A gift in consideration only of natural love and affection or of services or favours rendered in the past as an employee would not be a hiba-bil-iwaz.

10. The gift made by Hamid Ali in favour of Someshwar was, therefore, a hiba as understood in the Monammadan Law pure and simple and was liable to be revoked by the donor; and as the donor was a Shia he could do so by a mere declaration of his intention to do so.

11. The next question, which was urged on behalf ot the appellant, was that if the donee is a Hindu the Mohammadan Law relating to the revocation of a gift would not apply to him. It is difficult to accept that contention. Reliance was placed on two decisions of the Madras High Court reported in Kunhacha Umma v. Kutti Mammi Hajee, ILR 16 Mad 201 and P. Pathumma v. Kunniyai Parkum Siyali, ILR 31 Mad 228. The latter case follows the earlier one and it is, therefore, the authority of the earlier case which is important. But neither of the two cases are applicable to the facts of the present case. In these two Madras cases A, a muslim, made a gift in favour of B and C, who weret not governed by the Mohammadan Law. The question for decision in these cases was whether after the property had been gifted to B and C, its further devolution was to be governed by the law applicable to B and C or by the Mohammadan Law, which was applicable to A, and it was held that the law applicable to the further devolution of the property would be the one ty which B and C were governed and not the law by which A was governed; and no exception can possibly be taken to that view.

The question involved for decision in the present case is whether Hamid Ali made the gift of the property to Someshwar subject to the law by which he himself was governed of subject to the law by which the donee was governed. When Someshwar obtained a gift from Hamid All, he did so subject to all the limitations to which the gift was subject and one of those limitations was the right of the donor to revoke the gift according to the personal law applicable to him. The learned counsel for the respondent relied upon Mt. Tabera v. Ajodhya Prasad, AIR 1929 Pat 417. This case is not on all fours, but has some bearing on the question under consideration. In that case A, a muslim made a gift of property to B, a Hindu, without executing any document but accompanied by delivery of possession. He later on sold that property to C. When a suit was filed toft possession over this property against B, it was contended on behalf of C that there being no registered document executed under the Transfer of Property Act by which the donee B was governed, the sale in his favour was not perfect, But it was held that the donor being a muslim, a gift made by him was not governed by the provisions of the Transfer of Property Act, out by the personal taw which was applicable to him.

12. The case of pre-emption may be cited as an instance of the law which should apply in such cases. Where a muslim sells property to B, a Hindu, and C a muslim files a suit for pre-emption, a question has often been posed for decision whether in view of the fact that the vendee is not a muslim, a suit for pre-emption would lie; and it has been held that the property having been transferred by a muslim, it is subject to the Mohammadan law of preemption and that if the pre-emptor is a muslim, a suit for pre-emption under the Mohammadan Law would lie, even though the vendee may be a Hindu. This is at least the view taken by this Court in Gobind Dayal v. Inayatullah, ILR 7 All 775 and Abbas Ali v. Maya Ram, ILR 12 All 229.

13. A reverse case in which the transferor is a Hindu and the transferee a muslim may be cited as a more familiar Illustration to explain more clearly as to which law should fee applicable in such cases. Under Section 14 of Hindu Succession Act all limited owners of property under the Hindu taw have become full owners thereof. But we may imagine facts which existed prior to the enactment of the Hindu Succession Act. If A, a member of joint Hindu family, or B a Hindu widow, transferred property to a muslim without legal necessity, did the property cease to be subject to the law applicable to transfers by a Manager of a joint Hindu family or by a limited owner, or the transferee took the property subject to such law, the transfer being avoidable by other members of the joint family in one case and by next reversiorters in the other. The mere fact that the transferee is a muslim would not entitle him to say that the property ceased to be subject to Hindu Law and he got an absolute right in the same. Similarly where A, a muslim, makes a gift of property, the gift would be subject to the obligations imposed upon the gift under the Mohammadan Law and the mere fact that the donee is a non-muslim, the transaction would not cease to be subject to the limitations imposed upon it under the Mohammadan Law.

14. The gift was, therefore, subject to the Mohammadan taw relating to gifts and since the gift of this nature could be revoked by the donor, it was liable to be so revoked even though the donee was a Hindu.

15. The only other point which was argued on behalf of the aopellant was that the suit had been for a declaration regarding the revocation of the gift and possession over property, and that since the suit was filed, zamindari has been abolished and the claim for possession over the property has become infructuous. This contention has, however, no fores. The suit was decreed before the abolition of zamindari, and it is the decree, as passed by the Munsif, Which has got to be confirmed or set aside. Even though the zamindari may now have been abolished, a decree tor possession over zamindari property would entitle the plaintiffs to claim compensation in lieu thereof as against the appellant.

16. The appeal has, thus, no force and is consequently dismissed with costs to the respondent.

17. Leave to appeal is granted.


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