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a conditional Hiba is valid – while gifting two other house properties to each of his two sons, the suit schedule property was gifted by Sharfuddin to his wife Mahboob Bee for her life time maintenance and for her protection as well as to his two sons together.The Privy Council in Nawazish Ali Khan Vs. Raza Khan (1st supra) succinctly stated that gifts of the usufruct (ariyat) is recognized under Muslim law and such gift is not a gift of corpus. Further there was no necessity for the donor to write the names of his two sons also while making the gift to his wife Mahboob Bee if really corpus was gifted to late Mahboob Bee. The trial Court has completely missed the aforesaid aspect and proceeded on the footing as if it is a gift of corpus to Mahboob Bee. It is no doubt true that if any condition is attached to a gift of corpus, which runs inconsistent with or in derogation of gift, such condition is held to be void as per Section 164 of the Mulla’s Principles of Mahomedan Law. To my mind, a fair reading of the document Ex.B1 with the help of translations on record, shows that the gift deed-Ex.B1 in respect of suit schedule property was in two parts, while usufruct was gifted to Mahboob Bee, the corpus was gifted to both of his sons. When once we reached to the conclusion that the gift to Mahboob Bee was only of usufruct and not corpus, Section 164 of the Mulla’s Principles of Mahomedan Law by itself will have no application to the facts of the present case. Consequently after the death of Mahboob Bee on 20.6.1988, the suit schedule house stands gifted to both the sons, each having an equal share. The conclusion of the trial Court that there was no Matruka property left by Mahboob Bee is, therefore, unsustainable. Equally inconsequential the further contention of the defendants that Mahboob Bee exercised her right and sold the property to D.W.2 under Ex.B3. Once it is found that Mahboob Bee had only life interest and was entitled to the usufruct only for her life sustenance, it cannot be said that she had a right to alienate the property. As noticed above, Mahboob Bee died on 20.6.1988 and the present suit for partition was filed on 11.2.1993 within about five years of her death. Once the plaintiff is held to be entitled to seek a decree for partition, any unauthorized alienation made by Mahboob Bee has to yield to the said partition. It is not necessary for the plaintiff to separately question the alienation made by Mahboob Bee under Ex.B3 in favour of D.W.2. In my view, therefore, the points 1 and 2 deserve to be answered in favour of the plaintiffs/appellants and consequently the judgment of the trial Court is liable to be reversed. 16. Accordingly the appeal is allowed, the judgment and decree passed by the trial Court are set aside and the suit filed by the plaintiffs/appellants shall stand decreed as prayed for. No costs.

THE HON‘BLE SRI JUSTICE VILAS V. AFZULPURKAR

The Judicial Duel. The Plaintiff opening his C...

The Judicial Duel. The Plaintiff opening his Case before the Judge.–Fac-simile of a Miniature in the “Cérémonies des Gages des Batailles,” Manuscript of the Fifteenth Century in the National Library of Paris. (Photo credit: Wikipedia)

C.C.C.A.NO. 69 of 2001

31-05-2010

Abdul Khader (died) and others

Muzaffaruddin (died) and others

Counsel for appellants: Mr. K. Prathap Reddy

Counsel for Respondents: Mr. Basith Ali Yavar

:JUDGMENT:

1. Plaintiffs in OS.No. 147 of 1993 on the file of the VI-Addl. Senior Civil
Judge, City Civil Court, Hyderabad are the appellants. They filed the said suit
seeking to pass a preliminary decree for partition and separate possession in
respect of Matruka property bearing H.No. 17-1-238 to 241, admeasuring 1640 sq.
yards situated at Hat Mama Bhaktawar, near Santhoshnagar colony, Hyderabad. The
suit was dismissed under the impugned judgment and decree dated 30.11.2000. The
parties are referred to as they are arrayed in the suit.
2. The facts, which are borne out by the record, are as follows,
The original plaintiff and the defendants 1 to 4 are brothers being the
sons of late Sharfuddin and late Mahboob Bee. Late Sharfuddin was the owner of
the suit house bearing No. 17-1-238 to 241 as well as other two houses, with
which we are not concerned in this suit. It is alleged in the plaint that late
Sharfuddin executed a gift deed dated 3.9.1953 whereby the suit schedule house
was gifted to his wife Mahboob Bee, out of love and affection and for the
services rendered by her, and towards her life maintenance. The other two houses
were exclusively gifted to the first plaintiff and the first defendant.
Sharfuddin died on 11.1.1966, whereas his wife Mahboob Bee died on 20.6.1988.
The plaintiff, therefore, alleges that after the death of Mahboob Bee, the life
interest created for Mahboob Bee with respect to the suit schedule house came to
an end and thereby the first plaintiff and the first defendant are entitled to
equally share the Matruka property. The plaintiff alleges that on 1.2.1993 he
demanded the defendants to make partition of the suit schedule house and for
separate possession and as the same having been denied, the present suit was
filed for partition and separate possession, on 11.2.1993.
3. The defendants 1 to 4 resisted the suit by filing their written statement
claiming that under the registered gift deed dated 3.9.1953 Mahboob Bee became
exclusive owner of the suit schedule house and under the same document the first
defendant was exclusively gifted another house bearing H.No. 17-1-385 to 387.
It is further alleged that Mahboob Bee during her life time executed a
registered sale deed dated 27.8.1970 in favour of wife of first defendant and as
such there is no Matruka property left by her, when she died on 20.6.1988. It
is alleged that the plaintiff being aware of the sale made by Mahboob Bee in
favour of wife of first defendant, did not challenge the same and only in the
year 1993 he filed the present suit for partition suppressing the said sale.
4. The original plaintiff and the first defendant died pending the suit and
the plaintiffs 1 to 6 are the legal heirs of original plaintiff, whereas the
defendants 9 to 29 were impleaded as legal heirs of first defendant.
5. The plaintiff No.3 examined himself as P.W.1 and a close relative of the
plaintiff as P.W.2. Similarly the defendant No.24 was examined as D.W.1 and the
defendant No.9 as D.W.2 who is the wife of first defendant. On behalf of the
plaintiff, Exs.A1 to 7 were marked and crucial document among them is Ex.A6-
copy of registered gift deed executed by late Sharfuddin dated 3.9.1953 which is
in Urdu and the English thereof was marked as Ex.A7. The defendants also filed
and marked original gift deed as Ex.B1 which is in Urdu and its English
translation as Ex.B2. The registered sale deed dated 27.8.1970 under which D.W.2
purchased the suit house is marked as Ex.B3 and English translation thereof is
marked as Ex.B4. The trial Court framed the following issues,
(1) Whether the plaintiff is entitled for preliminary decree for partition and
separate possession of the suit property?
(2) Whether the suit property is not Matruka property of late Mahboob Bee and
not liable for partition as contended by the defendants 1 and 2?
(3) To what relief?

The trial Court came to the conclusion that the translations of Ex.A7 and Ex.B2
do not tally with each other and as per Ex.B2-the translation, there is no life
interest created in late Mahboob Bee. The trial Court also held that even if any
conditions or restrictions are placed on Mahboob Bee, as a donee under Ex.B1,
based upon Section 164 of the Mulla’s Principles of Mahomedan Law, the said
condition is void and thereby Mahboob Bee acquired an absolute interest in the
said gifted property i.e., the suit schedule property. The trial Court also held
that since late Mahboob Bee sold the said house to D.W.2 under Ex.B3, the
plaintiff is not entitled to claim that there is any Matruka property left by
late Mahboob Bee and consequently the suit was dismissed.
6. In this appeal Sri K. Prathap Reddy, learned senior counsel appearing for
the plaintiffs/appellants contended that the trial court’s findings are perverse
and contrary to the record and suffer from misreading of Ex.B1. He also
submitted that under Mohammedan Law there is no prohibition for gifting of the
usufructs while making a gift. He submits that Mohammedan Law recognizes the
principle that a property can be gifted to a donee by reserving the usufructs
either in the donor or gifting the usufructs alone to a donee. The learned
senior counsel submits that Section 164 of the Mulla’s Principles of Mahomedan
Law, relied upon by the trial Court, is misapplied to the present case by
thinking as if there is a gift of corpus and he fairly submits that even if
Ex.B1 is treated as a gift of corpus so far as Mahboob Bee is concerned, and if
there is any condition for restriction on it’s enjoyment by the donee, to that
extent, the condition would become void, however that is not the case at present
and a fair reading of Ex.B1-gift deed clearly shows that Sharfuddin intended to
gift life interest only to Mahboob Bee and as such the gift is clearly valid.
He relied upon a decision of the Privy Council reported in Nawazish Ali Khan Vs.
Raza Khan 1 as well as on the decision of a Division Bench of this Court
reported in Shaik Mastan Be and others Vs. Shaik Bikari Saheb and others 2.
7. Sri Basith Ali Yavar, learned counsel appearing for the respondents
submits that Ex.B1-gift deed is clear and unambiguous, inasmuch as the intention
of the donor was clear from the fact that out of three houses referred to in
Ex.B1, he gifted one house to his wife Mahboob Bee and one house each to his
both sons i.e., the first plaintiff and the first defendant. The learned counsel
also states that there is nothing in Ex.B1 to indicate that only life interest
was gifted to late Mahboob Bee. He, therefore, submits that any recital in the
gift deed putting restriction on the enjoyment of the property by Mahboob Bee
would be rendered void to the extent of such restriction. The learned counsel
submits that the trial Court has rightly appreciated the said fact that during
her life time itself Mahboob Bee sold the suit schedule house to D.W.2 and the
plaintiff never objected nor instituted any proceedings questioning the same.
The learned counsel, therefore, supported the trial Court’s judgment and
contended that the suit is not maintainable as the sale deed-Ex.B3 in favour of
D.W.2 is not challenged in the suit.
8. While hearing of this appeal, I found that there are two translations of
Ex.B1. While Ex.B1 is original document in Urdu, Ex.A6 is a copy of Ex.B1. Ex.A7
is English translation of Ex.B1 filed by the plaintiff along with Ex.A6, whereas
Ex.B2 is the English translation of Ex.B1 filed by the defendants along with the
original document-Ex.B1. Since there is a variation in the said two English
translations, the trial Court has chosen to follow Ex.B2-English translation,
while interpreting Ex.B1-gift deed. During the hearing of this appeal, when I
was confronted with these two contradictory translations, I requested both the
learned counsel to prepare an agreed translation of Ex.B1. The learned counsel
for the respondents has filed an English translation of Ex.B1, which was not
accepted by the learned counsel for the appellants. Thereupon, I directed the
Registry to get Ex.B1 translated through Translation and Printing Department of
the High Court and it was accordingly prepared and examined by both the learned
counsel who have made detailed submissions in the appeal, as briefly mentioned
above. Thus the problem relating to true translation mentioned above is required
to be resolved. As mentioned above, though there was oral evidence led by both
the parties, but controversy centers around the true and correct interpretation
of Ex.B1, dated 3.9.1953 and both the learned counsel rightly did not place any
reliance on the said oral evidence and have concentrated primarily on Ex.B1 and
the meaning it conveys.
9. The questions, therefore, that fall for consideration are (1) the effect
of purport of Section 164 of Mulla’s Principles of Mahomedan Law? and (2)
whether Ex.B1-gift deed falls within the provisions of the said Section 164?
10. Section 164 of Mulla’s Principles of Mahomedan Law reads as under,
“164. Gift with a condition,- When a gift is made subject to a condition
which derogates from the completeness of the grant, the condition is void, and
the gift will take effect as if no conditions were attached to it (s).”

The Muslim personal law relating to gifts was very elaborately considered by the
Privy Council in Nawazish Ali Khan Vs. Raza Khan (1st supra) and it will be
useful to extract the paragraphs 19 and 21 of the said judgment for the purpose
of appreciating the issued involved,
“19……… In their Lordships opinion this view of the matter introduces into
Muslim law legal terms and conceptions of ownership familiar enough in English
law, but wholly alien to Muslim law. In general, Muslim law draws no distinction
between real and personal property, and their Lordships know of no authoritative
work on Muslim law, whether the Hedaya or Baillie or more modern works, and no
decision of this Board which affirms that Muslim law recognises the splitting up
of ownership of land into estates, distinguished in point of quality like legal
and equitable estates, or in point of duration like estates in fee simple, in
tail, for life, or in remainder. What Muslim law does recognise and insist upon,
is the distinction between the corpus of the property itself (ayn) and the
usufruct in the property (manafi). Over the corpus of property the law
recognises only absolute dominion, heritable and unrestricted in point of time;
and where a gift of the corpus seeks to impose a condition inconsistent with
such absolute dominion the condition is rejected as repugnant; but interests
limited in point of time can be created in the usufruct of the property and the
dominion over the corpus takes effect subject to any such limited interests.
………..
This distinction runs all through the Muslim law of gifts – gifts of the corpus
(hiba), gifts of the usufruct (ariyat) and usufructuary bequests. No doubt where
the use of a house is given to a man for his life he may, not inaptly, be termed
a tenant for life, and the owner of the house, waiting to enjoy it until the
termination of the limited interest, may be said, not inaccurately, to possess a
vested remainder. But though the same terms may be used in English and Muslim
law, to describe much the same things, the two systems of law are based on
quite” different conceptions of ownerships. English law recognises ownership of
land limited in duration; Muslim law admits only ownership unlimited in
duration, but recognises interests of limited duration in the use of property.
…………….
Their Lordships think that there is no difference between the several Schools of
Muslim law in their fundamental conception of property and ownership. A limited
interest takes effect out of the usufruct under any of the schools. Their
Lordships feel no doubt that in dealing with a gift under Muslim law, the first
duty of the Court is to construe the gift. If it is a gift of the corpus, then
any condition which derogates from absolute dominion over the subject of the
gift will be rejected as repugnant; but if upon construction the gift is held to
be one of a limited interest the gift can take effect out of the usufruct,,
leaving the ownership of the corpus unaffected except to the extent to which its
enjoyment is postponed for the duration of the limited interest.”

11. In a decision of this Court reported in Shaik Mastan Be and others Vs.
Shaik Bikari Saheb and others (2nd supra) a similar question was considered and
it was held that the intention of the donor has to be ascertained from the
document as to whether he intended to gift only life time interest in the
property to the donee and for that purpose a reading of the entire document is
essential. This Court further held as follows,
“After considering all these cases it is clear that a Sunni under Hanafi
Mohammedan Law cannot without consideration convey ownership of the property
with limitations for the life of the donee. But where the ownership is vested in
somebody and only the enjoyment of the property is conveyed or received, the
rules does not apply. Therefore limitation on the enjoyment of property is
permissible though it is not allowed on ownership. This separate enjoyment is
known as ariat and therefore if the reservations in favour of the donor under
Exhibits B1 and B2 be of this kind, they would be valid.
The passages in Exhibits B1 and B2, which persuade us to hold their having
conveyed immediate rights in the donees can be shortly stated. The relevant part
of Exhibit B1 reads as follows:-
“I have ………..conveyed to you under dakhal the hereunder schedule mentioned
immovable property……………belonging to me and created rights to your in
the property now itself”.
Similarly, the relevant passage in Exhibit B2 reads thus:-
“I have……conveyed to you under dakhal the hereunder schedule mentioned
immovable property………belonging to me and created rights to you in the
property now itself”.
In our opinion, the intention indicated by these parts in the two documents is
that the donees were being then vested with the rights, which the owner had.
Therefore, what the donor preserved for herself was the retention of the
properties which, according to the later passages in the documents were for
enjoying the produce till her life-time. Mastan Bi, in her cross-examination as
P.W.1, admits that the 1st defendant and farm servants plough the lands and that
the 3rd defendant was paying the kist. She further admits that she herself had
not leased the lands to other persons. Also Madhav Rao, D.W.1 states that the
1st defendant was cultivating the lands. D.W.2 who is the 3rd defendant swears
that the 1st and the 2nd defendants were in possession of 8 1/2 acres. Exhibits
B9 and B10 are certified copies of the application for transfer of pattas in
favour of the donees. Exhibits B5 to B8 are abstracts of cultivation accounts
for Faslis 1358, 1359, 1360 and 1361 respectively showing that defendants Nos. 1
to 3 were in possession of Survey No. 110. In addition, Exhibit B11 shows the
1st defendant as having raised tobacco on acre 1-50 cents in 1950-51. In these
circumstances, we have no doubt that Mastan Bi conveyed ownership of the
properties, which she got from her brother to her nephew and niece on the dates
of Exhibits B1 and Exhibit B2 and also delivered possession to the donees. It is
equally clear that she reserved only rights in the usufructs for herself during
her life, because she had in both the documents stipulated that she shall not
effect any alienation and create any right and interest in respect of the
property in any manner during her life. Then Mastan Bi in her cross-examination
as PW.1 admits that if the 1st and 2nd defendants maintain her, they should
enjoy the property. That was the arrangement. It follows that the donor reserved
to herself enjoyment of the produce of the properties and vested ownership in
the donees. That beding the nature of the arrangement. It follows that the donor
reserved to herself enjoyment of the produce of the properties and vested
ownership in the donees. That being the nature of the arrangement, the
limitation on the produce being enjoyed for life-time, would not be void”.

12. In the light of the above legal position, if we consider Ex.B1 with the
help of its translations on record, the following position emerges. As per Ex.A7
the relevant recitals are as follows,
“…………Since I have reached the age of my normal life, and there is no
guarantee of life, as such I wish to gift with possession these houses, out of
natural love and affection and in lieu of obedience and for purposes of welfare
and life-time maintenance of my wife, Smt. Mahboob Bi, in favour of my own two
sons Sri Abdul Qadar, age (35) years and Muzaffaruddin, age (24) years,
excepting them there is no other lawful heir to me. That I have the full right
and authority to gift the above said property. Accordingly the house bearing No.
IIS-9-238 to IIS-9-241 situated at Hat Mama Bakathwar valued O.S. Rs. 150/-
(Rupees One hundred fifty only) is gifted by way of Gift Settlement, in favour
of my wife Smt. Mahboob Bi till her life time and the house No. IIS-9-251 to
IIS-9-253 situated at Hat Mama Bakthawar valued O.S. Rs.150/- (Rupees One
hundred fifty only) is gifted in favour of my son Abdul Qadar and the house No.
I-4-385 to 387 situated at Imliban valued O.S. Rs.200/- (Rupees two hundred
only) is gifted in favour of my son Muzaffaruddin…………”

13. Similarly, as per Ex.B2-translation the relevant portion is as follows,

“……….As I have become old aged and I reached to an age where there is no
hope of my life and death position, therefore, in view of natural love and
faithful services rendered by my wife Smt. Mahboob Bee and my two sons namely
Abdul Quader, aged 35 years, and Muzaffaruddin, aged 24 years, for looking after
me and maintaining me with love and affection and except them nobody is there as
my legal heirs and successors. As such I have full, sole and absolute right to
gift them with possession during my life time, my below mentioned owned and
possessed property, in the manner hereunder, The house bearing Nos. IIS-9-238 to
IIS-9-241 situated at Mama Baqtawar Haat, valued O.S. Rs.150/- in favour of my
wife Smt. Mahboob Bee; the house bearing Nos. IIS-9-251 to IIS-9-253 situated at
Mama Baqtawar Haat, valued O.S. Rs.150/- in favour of my son Abdul Quader; and
the house bearing Nos. I-4-385 to 387 situated at Imlibun valued O.S. Rs.200/-
to and in favour of my another son Muzaffaruddin……..”

14. As per the translation supplied by the Registry of this Court, the
relevant portion is as follows,
“………Since I have become aged, and there is no hope of life, therefore I am
intending to gift with possession of my houses, in view of natural love and
affection and faithful services for purpose of maintenance in favour of my wife
Smt. Mahboob Bee to the extent of this document and two own sons of this
Executant namely Abdul Khader, aged 35 years, and Muzaffaruddin, aged 24 years,
except themselves nobody can be legal heir, in my life time, of which I have
complete rights. Therefore, duly obtaining legal opinion having gifted away with
possession the house bearing Nos. IIS-9-238 to IIS-9-241, situated at locality
Hatt Mama Bakhtawar, value Rs.150/- O.S. (Osmania Sikka), to the extent of this
document in favour of this executant’s wife Smt. Mahaboob Bee, house bearing No.
IIS-9-251 to IIS-9-253 situated at locality Hatt Mama Bakhtwar, valued Rs.150/-
O.S. in favour of this executant’s son Abdul Khader, house bearing No. I-4-385
to 387, situated at locality Imli Ban, valued Rs.200/- O.S. in favour of this
Executant’s son Muzafaruddin…….”

15. A conjoint reading of all the translations of Ex.B1 shows that Sharfuddin
had recorded natural love and affection as well as services rendered by his wife
and gifted the house property to her for making provision for her life time
maintenance. The translations of Exs.A7 and B2 are similar to that extent,
except the word ‘life time maintenance’ is missing in Ex.B2-translation. The
translation supplied by the Registry specifically states that apart from the
natural love and affection, faithful services, ‘for the purpose of maintenance’
the gift was made in favour of Mahboob Bee. The Urdu text used the word
‘parvarish’ and ‘Tajist’. While parvarish means nourishment, sustenance,
protection, patronage, rearing, fostering, upbringing etc., Tajist means, for
the purpose. The said two words, therefore, unmistakably point out that
Sharfuddin wanted to make provision for life time maintenance of his wife and
for her sustenance and in recognition of services rendered by her and out of
natural love and affection, the said gift deed was made. It is also very
striking to note that in all the three translations it is mentioned that the
donor had gifted the suit schedule house to Mahboob Bee as well as to his both
sons viz., Abdul Khader and Muzaffaruddin. Exs.A7 and Ex.B2-translations show
that the gift was made by Sharfuddin in favour of Mahboob Bee as well as to his
sons. The translation supplied by the Registry also confirms to the same. A
reading of the entire text of Ex.B1-gift deed would unmistakably point out that
while gifting two other house properties to each of his two sons, the suit
schedule property was gifted by Sharfuddin to his wife Mahboob Bee for her life
time maintenance and for her protection as well as to his two sons together. The
Privy Council in Nawazish Ali Khan Vs. Raza Khan (1st supra) succinctly stated
that gifts of the usufruct (ariyat) is recognized under Muslim law and such gift
is not a gift of corpus. Further there was no necessity for the donor to write
the names of his two sons also while making the gift to his wife Mahboob Bee if
really corpus was gifted to late Mahboob Bee. The trial Court has completely
missed the aforesaid aspect and proceeded on the footing as if it is a gift of
corpus to Mahboob Bee. It is no doubt true that if any condition is attached to
a gift of corpus, which runs inconsistent with or in derogation of gift, such
condition is held to be void as per Section 164 of the Mulla’s Principles of
Mahomedan Law. To my mind, a fair reading of the document Ex.B1 with the help
of translations on record, shows that the gift deed-Ex.B1 in respect of suit
schedule property was in two parts, while usufruct was gifted to Mahboob Bee,
the corpus was gifted to both of his sons. When once we reached to the
conclusion that the gift to Mahboob Bee was only of usufruct and not corpus,
Section 164 of the Mulla’s Principles of Mahomedan Law by itself will have no
application to the facts of the present case. Consequently after the death of
Mahboob Bee on 20.6.1988, the suit schedule house stands gifted to both the
sons, each having an equal share. The conclusion of the trial Court that there
was no Matruka property left by Mahboob Bee is, therefore, unsustainable.
Equally inconsequential the further contention of the defendants that Mahboob
Bee exercised her right and sold the property to D.W.2 under Ex.B3. Once it is
found that Mahboob Bee had only life interest and was entitled to the usufruct
only for her life sustenance, it cannot be said that she had a right to alienate
the property. As noticed above, Mahboob Bee died on 20.6.1988 and the present
suit for partition was filed on 11.2.1993 within about five years of her death.
Once the plaintiff is held to be entitled to seek a decree for partition, any
unauthorized alienation made by Mahboob Bee has to yield to the said partition.
It is not necessary for the plaintiff to separately question the alienation made
by Mahboob Bee under Ex.B3 in favour of D.W.2. In my view, therefore, the points
1 and 2 deserve to be answered in favour of the plaintiffs/appellants and
consequently the judgment of the trial Court is liable to be reversed.
16. Accordingly the appeal is allowed, the judgment and decree passed by the
trial Court are set aside and the suit filed by the plaintiffs/appellants shall
stand decreed as prayed for. No costs.

?1 AIR (35) 1948 PRIVY COUNCIL 134
2 1958 II An. W.R. 473


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