1. This is an appeal by the plaintiff against the decision of the learned Additional Subordinate Judge of Howrah dated the 24th May 1915. The plaintiff is a Muhammadan lady. She brought the suit claiming partition of a 2-annas share in the property which she said she Was entitled to. The parties are relations The plaintiff claimed her title Under a document called a heba bil ewaz, that is, a gift for consideration. The document bore date the 26th Bysakh 1303. It was Court below executed by her late father-in law Sujanddin Nazir, who also registered it. There is no doubt about the execution and the registration of the document. The reason why the document was given is stated to be this. The plaintiff married in Bysakh 1302 the defendant No. 1, who was the only son of Sujauddin. The dower was stipulated, according to the Muhammadan marriage register, to be a sum of Rs. 10,000 Rs. 5,000 being prompt and Rs. 5,000 deferred. Only a sum of Rs. 500 was paid at the time of the marriage and it appears from the register that it was the intention all along that the dower payable to the plaintiff was to be secured in a proper manner. So about one year after the marriage Sujauddin executed this heba-bil-euaz. At that time Sujanddin was entitled to a 3-anna 15 gunda odd share in Towji No. 95 of the Hooghly Collectorate. By the deed in satisfaction of Rs. 800, a portion of the dower, he made over to the plaintiff a two-anna share out of the 3 anna 15-gunda share to which he was entitled. Sujauddin subsequently on the death of his sister inherited another two annas. Immediately following the deed what was done does not appear clear from the evidence, but it is not suggested in this case that the document remained in the possession of Sujanddin. The registered document, so far as appears from the evidence, presumably was made over to the plaintiff. There is a lot of evidence in this case as to whether the plaintiff was actually in receipt of a definite portion of the rent or whether Sujauddin was actually receiving it. These parties were all living in the same house--living presumably on the income of the property--and it would be unusual in a case of that nature for the daughter-in-law to receive from the hands of the father in-law this income of the property that had been given to her in lieu of a portion of the dower, and then to have to pay a portion of it towards the family expenses. But what is important is that on the 4th June 1908 when Sujauddin was alive, the plaintiff applied for and obtained registration of her name in the Collectorate in respect of this two-anna share claiming it under the deed of heba-bil-ewaz already mentioned. That seems to me to be an important transaction that had taken place, It was a definite recognition of the gift both by the Col-lectorate and by Sujauddin. Then we come to an earlier suit. The present defendant No. 12 brought a partition suit in which Sujauddin was impleaded as a defendant. He set up the plea that the suit wat defective for want of parties, on the ground that he had given to his daughter-in-law, the present plaintiff, two annas out of his share in satisfaction of a portion of her dower. There was a compromise in that suit and the terms of the compromise provided, although the present plaintiff was not a party to that compromise, that two annas out of Sujauddin's share should belong to the present plaintiff, It is quite true that subsequently that compromise was set aside on the ground that three Pardanashin ladies were not bound by the terms thereof, but still the clear admission made by Sujauddin recognising the heba-bil-ewaz cannot be got rid of. The learned Judge's view that, because at the instance of these three Pardanashin ladies who claimed under totally different rights the compromise was not set aside, therefore, the admission of Sujauddin in the written statement and the sole-nama could have no evidentiary value for and against anybody in the world is obviously inaccurate. Then followed the death of Sujauddin. Sujauddin's family consisted of, besides the defendant No. 1 his only son, five daughters. Four of these daughters are defendants in the present case and the defendants Nos. 2 to 8 are the children of the remaining daughter who is dead. The case obviously is one in which these daughters and the children of the dead daughter may no doubt feel a certain amount of disappointment, on the ground that Sujanddin seems to have treated his only son's wife on a more liberal basis than if he had permitted his property to devolve according to the ordinary rules of succession under the Muhammadan Law. But a person may form a deep attachment for his only son and he may wish to benefit that son and may give him a larger share in the property than what the son would inherit, and that is no reason why a deed like this duly executed and duly registered should not be given due effect to. The learned Judge seems to have been misled by an inaccurate reading of the decision of this Court in the case of Rahimjan Bibi v. Imanjan Bibi 15 Ind. Cas. 698 : 17 C.L.J. 173. That case does not establish the proposition that the learned Subordinate Judge says it does. That case is a very different case, because there the hebabil-ewaz was never parted with by the donor. Of course in those circumstances where Ae document was retained by the donor without any evidence that he ever intended to benefit the donee there was no gift, nor was there any possession, either actual or constructive. That was a case where the evidence established clearly that the deed was not acted on. The deed in the present case was no doubt fully acted upon.
2. Then a point was made on the form of the gift. That turns on the words in the deed as to the nature of the enjoyment which the donee was entitled to have. The terms of the gift are clearly unqualified, because the words are that the donor gives up the entire right, title and interest in the two annas and vests the same in the donee by executing the hiba-bil-ewaz. The donor Sujauddin then describes the mode of enjoyment of the gift and he says, by getting your name registered and by paying the revenue to the Collectorate yon with your sons born of your womb out of the loins of my said son and grandsons, etc., in succession shall continue to hold and enjoy the same.' It is said that that condition in the gift restricts the former part of the document and, therefore, so controls it that it is a gift of a limited interest not recognised by the Muhammadan Law. But the ordinary rules applicable to gifts apply to the Muhammadan Law like any other system of law, and one of these rules is that a gift is not invalidated by an invalid condition being attached to it. That system has been recognised apparently by the Muhammadan Jurists from the earliest period as cited in Baillie's Digest of Muhammadan Law, Second Edition, page 546. If those conditions as to the form of enjoyment cannot control the form of the gift, it is absolute and unqualified. I think that in this case the learned Judge's finding that this document has not been acted on and was intended to defraud the daughters of the living Muhammadan, who had a right to dispose of his property in any manner he thought fit, cannot be supported. It may be a misfortune to these ladies that their father's affection for his only son was so great that he treated him and his wife on so generous terms that they reduced the share which they would have got by inheritance. But that does not make the document an invalid one. I think that effect must be given to this document, properly executed by the deceased Sujauddin and properly registered and subsequently acted on by registration in the Collectorate and by other acts which leave no doubt in my mind that it was intended by the deceased Sujauddin to pass this property from himself to his daughter-in law, the plaintiff in the present suit. The present appeal must, therefore, be allowed and the judgment of the learned Judge set aside and in lieu thereof there will be a declaration thafr the plaintiff is entitled to a two-anna share in the property under and by virtue of the hiba-bil-ewaz referred to in the plaint and the case must be remitted to the Court of first instance to effect the partition of the plaintiff's share in accordance with that declaration. The costs of this appeal will be borne by the respondents. We assess the hearing fee at three gold mohurs. The costs of the Court of first instance will be dealt with by the learned Judge at the time he makes the partition.
3. Shamsul Huda, J.--I agree.