Abul Haque and Others vs Mt. Tamizan and Others

Kulwant Sahay, J.—The suit out of which the present appeal arises was instituted by the plaintiffs-appellants for a declaration of their title to and recovery of possession of certain shares in certain villages set out in the plaint.

The plaintiffs'' case was that the properties originally belonged to one Abdul Rahim. He died leaving his widow Mt. Umran, his daughter Mt. Sahiman who is Defendant No. 2 in the present suit, and his brother Abdul Halim as his heirs under the Mahomedan Law. The widow, Umran, had a dower-debt to the extent of Rs. 40,000 and although her share in the inheritance was only 2-annas yet she was allowed to remain in possession of the entire estate as the value of the estate was less than the amount of her dower-debt. Mt. Umran died in Jeth 1327 leaving her daughter the Defendant No. 2, her father and her mother who are Defendants Nos. 3 and 4 as heirs. According to the Mahomedan Law, the daughter took one-half, and the father and mother between themselves took the remaining half of the inheritance. The plaintiffs allege that the Defendants Nos. 3 and 4 took possession of one-half of the properties left by Mt. Umran, and, on the 29th of August 1921, they sold this share to the plaintiffs. The plaintiffs on going to take possession were obstructed by the defendants. They found that the Defendant No. 2 was registered in the Collectorate Register in respect of the entire estate left by Mt. Umran. They accordingly, instituted the present suit for a declaration of their title to one-half of the properties left by Mt. Umran by virtue of their purchase from the Defendants Nos. 3 and 4.

The Defendant No. 2, as I have already said, is the daughter of Mt. Umran and her case is that before her death Mt. Umran had made a verbal gift of all her properties in her favour and had put her in possession and she was registered in the Collectorate Register in respect of the entire estate, and that on the 25th of May 1921, she had transferred the 2 annas 10-dams odd share in one of the villages named Lodipur Dhorha to the Defendant No. 1 who was in possession of that share, and that the remaining properties were in the possession of Defendant No. 2 herself.

Various issues were raised and the learned Munsif found them in favour of the defendants and dismissed the suit. He found that the verbal gift in favour of the Defendant No. 2 had been established; that the Defendants Nos. 3 and 4 were never in possession of any share of the properties left by Umran; and that the Defendant No. 2 was in possession of all the properties. He further found that the gift was in respect of all the properties which Mt. Umran had. On appeal the learned District Judge has affirmed the decision of the Munsif.

On second appeal by the plaintiffs, the learned Counsel on their behalf has attacked the validity of the gift in favour of Defendant No. 2. He contends, in the first place, that there is no specific finding as to what was the subject-matter of the gift, and he argues that upon the pleadings and the evidence it must be held that the gift was confined only to the properties inherited by Mt. Umran from her husband and not the dower-debt which was due to her from her husband''s estate. He refers to the plaint where in para. 4 it was stated that the Defendants Nos. 3 and 4 had sold to the plaintiffs their share of Mt. Umran''s estate with the proportionate dower-debt due to her by her husband Abdul Rahim and the right to realize the same, but that no mention of the dower-debt was made in the written statement of either of the Defendants Nos. 1 and 2. The share inherited by Mt. Umran from her husband was only a 2-annas share in the estate left by him and that, therefore, the gift, to the Defendant No. 2 by Umran must be confined to that 2-annas share and not the whole of the estate or to the dower-debt due to her.

In the first place, from the issue raised and the decision of the trial Court, it doss not appear that this point was specifically taken in that Court. In the written statement of the Defendant No. 1 in para. 6 it is stated that Mt. Umran gave her entire right and interest under the verbal gift to her daughter the Defendant No. 2, and in para. 7 it is stated that Mt. Umran left nothing behind her out of the property in dispute. In the written statement of Defendant No. 2 it is stated in para. 4 that Mt. Umran gave to the Defendant No. 2 under a verbal gift all her properties including her right and title thereto, and that the Defendant No. 2 accepted the gift and has been in possession and occupation of all the gift properties including the properties in dispute. Therefore, although there is no specific mention of her dower-debt yet there is a clear averment that Mt. Umran made a gift to her daughter of all her properties including the properties in dispute.

Before the learned District Judge a point appears to have been taken by the plaintiffs to the effect that Mt. Umran''s possession was only that of a mortgagee; in other words, that she was in possession of her husband''s properties in lieu of her dower and that she (Mt. Umran) could not give that property to the Defendant No. 2 by way of gift. The contention seems to be that, what was given ingift was the right to remain in possession in lieu of the dower. The learned Judge disposed of this point by observing that the plaintiffs claimed that the Defendants Nos. 3 and 4 had inherited the right to collect the dower-debt and held the property in lieu thereof and sold it to the plaintiffs, i.e., the plaintiffs had the right to collect the dower-debt and to remain in possession of the property in lieu thereof. The learned Judge found upon the evidence that the gift by Mt. Umran was in respect of all her properties and that it must be held that the right to collect the dower-debt was also given in gift to the Defendant No. 2. Now, this is a finding of fact based upon the evidence, and is conclusive. It must, therefore, be held that the gift included the, dower-debt due to Mt. Umran from her husband''s estate. In this view of the case it is not necessary to consider the contention of the learned Counsel for the appellants to the effect that the right to remain in possession of the properties in lieu of the dower could not be transferred apart from the dower debt itself.

The learned Counsel relied upon the ruling of this Court in Abdur Rahman Vs. Wali Mohammad, where it was held that a Muhammadan widow could not transfer her lien on the property of her husband in respect of her dower-debt or the right to remain in possession of her husband''s estate in lieu of such debt and that the lien on the property which gives the widow right to possession until the debt has been discharged is not an interest in the property which can be severed from the right to dower and transferred as a separate interest. A different view appears to have been taken by another Division Bench of this Court in Musammat Bibi Makbulunnissa and Another Vs. Musammat Bibi Umatunnissa and Another, but it is not necessary to consider this point in the face of the finding of the learned District Judge that the dower-debt was the subject-matter of the gift.

The next point taken by the learned Counsel for the appellants is that the gift was invalid as it was not proved that the Defendant No. 2 was given possession in the lifetime of the widow. He has referred to the law on the subject as set out in Tyabji''s Muhammadan Law, in Mulla''s Muhammadan Law, in Macnaughten and in Ballie''s Digest and in Wilson''s Muhammadan Law, and has contended that in order to be a valid gift there must be a delivery of possession of the property in the lifetime of the donor. It is not necessary that possession should be given to the donee immediately at the time of the gift. Possession can be given subsequently. But it is contended that if possession is taken by the donee subsequent to the actual time of the gift, then such possession must be shown to have been taken with the consent of the donor. It is contended that the finding in this case is that the Defendant No. 2 got herself registered in the Collectorate Register after the death of Mt. Umran, and that the evidence also showed that her possession began after the death of Mt. Umran and, therefore, the gift was invalid under the Mahomedan Law.

Now, both the Courts below have considered the question of possession and they have found that the Defendant No. 2 has been in possession ever since the gift. The widow, Mt. Umran, died in Jeth 1327. The gift was made in the preceding Phagun and, therefore, one cannot expect much evidence of possession during the three months which intervened between the gift and the death of Mt. Umran. It has also to be remembered that the properties were zemindari properties in the possession of tenants and possession could be taken only by collection of rents. There is positive evidence that Mt. Umran called the tenant of one of the villages and told him that she had made a gift of all her properties to her daughter and directed him to pay the rents to her.

This is clear evidence of the delivery of possession by the donor herself. It is contended that this evidence relates to only one of the villages. But this is a piece of evidence from which a conclusion can be drawn that the donor did really put the donee in possession of all the properties in gift. At any rate, when she put the donee in a position to take possession of all the properties in gift, it would be sufficient under the Mahomedan Law to validate the gift. The learned Judge deals with the question of possession and refers to the evidence of the tenants and finds that the delivery of possession has been satisfactorily proved. Under the circumstances, I am of opinion that there is no substance in this contention.

The learned Counsel has referred to portions of evidence in the case, both oral and documentary, in order to show that the gift was confined only to the share inherited by Mt. Umran from hear husband, and also on the question of possession. I am of opinion that it was not open to him to refer to the evidence in second appeal. No doubt, the learned Judge does not refer to the recitals contained in the deed of sale executed by the Defendant No. 2 in favour of the Defendant No. 1; but there is no reason to suppose that because there is no reference in the judgment to this document, the learned Judge did not consider this evidence. This appeal is concluded by the findings of fact and must be dismissed with costs.

Adami, J.

I agree.