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Yusuf Ali and ors. Vs. the Collector of Tippera - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal138
AppellantYusuf Ali and ors.
RespondentThe Collector of Tippera
Cases Referred and Khajooroosnissa v. Rowshan Jehan I.L.R.
Excerpt:
mahomedan law - gift, requisites of--gift in futuro. - .....for the purpose of having these two material points more clearly ascertained:1st-what interest had bhani bibi in the properties given her by her husband, and those purchased with her own money, at the time when she executed the ikrar of 1253? and2nd-under what circumstances, and. for what reason, did she execute that ikrar2. upon these points the district judge has found:1st-that bhani bibi had an absolute, and not a life, interest only in the property in dispute up to the time when she executed the ikrar of 1253; and2ndly-that the ikrar of 1253 was executed at the solicitation of her husband, but without any undue influence or fraud.3. he says that the reason for her executing it seems to have been that, as she was then pretty well advanced in life, and had no children, her husband was.....
Judgment:

Richard Garth, C.J.

1. We thought it right in this case, when it first came before us on second appeal, to send it back to the District Judge, for the purpose of having these two material points more clearly ascertained:

1st-What interest had Bhani Bibi in the properties given her by her husband, and those purchased with her own money, at the time when she executed the ikrar of 1253? and

2nd-Under what circumstances, and. for what reason, did she execute that ikrar

2. Upon these points the District Judge has found:

1st-That Bhani Bibi had an absolute, and not a life, interest only in the property in dispute up to the time when she executed the ikrar of 1253; and

2ndly-That the ikrar of 1253 was executed at the solicitation of her husband, but without any undue influence or fraud.

3. He says that the reason for her executing it seems to have been that, as she was then pretty well advanced in life, and had no children, her husband was anxious that the property which he had bestowed upon her should not pass away from his own children. He, therefore, induced her to convey it to herself for life, and after her death to his children by his other wife.

4. The District Judge finds, moreover, that the instrument was executed at Bhani Bibi's own residence, and in the presence of her husband, without any of her own relatives being present; that it was read over to her before she signed it; and that as to any fraud, compulsion, or undue influence, except the 'anurah' of her husband mentioned by the witness Doorga Churn, there is absolutely no trace.

5. These findings of the Judge completely dispose of the two material points which were raised before us on the former occasion. It is now clear that Bhani Bibi had an absolute and not a life estate in the property, and that the ikrar was not made in settlement of any dispute, or by way of compromise.

6. We thought it not improbable, that some dispute had arisen in the family as to whether she had a life-estate or not, or as to what her rights in the property really were; and if that had been so, and if the ikrar had been made for the purpose of settling those disputes, there might have been a good consideration for it. But these doubts are now set at rest by the finding of the District Judge.

7. We have, therefore, only to decide, as a matter of law, whether such voluntary relinquishment of her property on the part of Bhani Bibi was valid in point of law; and as to this it has been contended by the appellants:

1st-That, by Mahomodan law, a gift cannot be valid unless it is accompanied by possession; and

2nd-That it cannot be made to take effect at any future definite period.

8. There certainly seems no doubt as to the correctness of both these propositions. They are laid down very clearly in Baillie's Digest of Mahomedan law, pp. 507 and 512, and in Macnaghten's Mahomedan law, p. 50, Chap. V, paras. 3 and 4; and they are confirmed and exemplified by several authorities to which we have been referred. See Nawab Umjad Ally Khan v. Mussamut Mohumdee Begum 11 Moore's I.A. 517; Khader Hussain Sahib v. Hussain Begum Sahiba 5 Mad. H.C. Rep. 114; Rajah Syud Enaet Hossein v. Ranee Roshun Jahan 5 W.R. 419 and Khajooroosnissa v. Rowshan Jehan I.L.R. 2 Cal. 184.

9. Indeed, the Advocate-General, who appeared for the respondent, scarcely attempted to dispute the general correctness of these propositions. But his main contention was, that the deed of gift by Bhani Bibi was the result of a family arrangement, and that, being of that nature, we ought to presume that it was made for good consideration.

10. There is no evidence, however, that it was the result of a family arrangement; and certainly the finding of the lower Court, which was directed to enquire into the circumstances under which it was made, affords no ground for that supposition. The disposition of the property was made by the lady at the request of her husband, and prompted, no doubt, by a very proper motive. She felt grateful to him for the generosity with which he had treated her, and was very ready to carry out his wishes by securing (as no doubt she intended to do), the reversion of the property after her death to her husband's family.

11. There is nothing, so far as we can see, in the form of the disposition to distinguish it from an ordinary gift of property in futuro; and, as such a gift is not valid by Mahomedan law, we must need reverse the judgment of the Court below, and confirm that of the Subordinate Judge with costs.


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