Shaik Mastan Bi and others vs Shaik Sahab and others

M.A. Ansari, J.—This appeal arises from a decree of the Subordinate Judge, Guntur, whereby the appellants'' suit for the establishment of their rights to possession of the plaint schedule properties has been dismissed, but without costs. The following pedigree would show the relation between the first appellant since deceased and the respondents:

Syed Hussain Saheb had apparently belonged to the Hanafi Sect of Sunni Mohammedans and is stated to have owned the properties in dispute. Merra Bi one of the two daughters had died before her father and Bikari Saheb, her son, would not therefore be entitled to any share in his grand-father''s properties. Syed Hussain''s heirs would be his two surviving children and the son''s share in whatever properties he left would be twice to what the daughter would get.

After the father''s death, the heirs had not divided the inheritance, which had remained with the brother. In 1947 certain arrangement took place between the brother and the sister. By Ex. A-l which was executed by the brother and is dated July 9, 1947 Mastan Bi was given Acs. 8-57 cents of land in Nandigama. The document recites that about 8 months prior to its execution Mastan Bi''s husband had died, she had no issue, and she intended to live with her sister''s son to improve him and to spend her last days with him by rendering service to him.

It then states that in accordance with the decision of mediators the executant had put her on tike date the deed was executed in possession of 8 acres and 57 cents in Nandigama, being the property acquired by the father, in satisfaction of her share and this she should enjoy with absolute right. On the same day the sister had executed Ex. A-2 which is the relinquishment deed in favour of the brother as regards her 1/3 share in the family properties.

This document recites that Mastan Bi was living with the brother and was being maintained by him, that she had demanded her share under the Mohammedan Law that her brother had consented to abide by the decision of mediators and had accordingly executed a gift deed in her favour. Both these documents are not in dispute.

The controversy between the parties is concerning the legality of the next two documents, which Mastan Bi had executed on 9-7-1947. One of the aforesaid documents is Ex. B-l which is in favour of Bikari Saheb, granting him Acs. 5-50 cents out of the property covered by Ex. A-l. The other is Ex. B-2 whereby she has gifted the remaining Ac. 3-07 cents of what she got under Ex. A-l in favour of Jan Bi, her niece, who had married the nephew.

The appellant''s case is that the vested remainders thereby created in favour of the donees are void under the personal law of the parties. As the contents of the two documents are important, we would give relevant extracts from them. Ex. B-l recites that Mastan Bi had begun to live with Bikari Saheb, who was maintaining her since the death of her husband about 8 months prior to the execution of the document, and in expectation that he would continue to maintain her she has conferred upon him with immediate effect the aforesaid Ac. 5-50 cents. The document then reads as follows:

I have, on account of my affection for you, conveyed to you under Dakhal the hereunder schedule mentioned immovable property of the value of Rs. 700 (Rupees Seven Hundred) belonging to me and created rights to you in the property now itself I shall retain the property covered by Dakhal in my possession and enjoy the produce thereof till my life-time. After my. life-time, you and your heirs shall take possession of the schedule-mentioned property and enjoy the same from your son to grand-son and so on in succession with absolute powers of disposition by way of gift and sale, in which case I and my heirs shall not raise any dispute whatever at any time with you and your heirs.

The document in favour of the niece is in similar terms. It also recites that since her husband died, the executant had been residing in their house having left her father-in-law''s village and the donee has been attending to the executant. It then reads as follows:

I have on account of my affection for you, conveyed to you under dakhal the hereunder schedule mentioned immovable property of the value of Rs. 300 belonging to me and created rights to you in the property now itself. Till my life-time, I shall retain the property covered by the dakhal in my possession and enjoy the produce thereof. After my life-time, you and your heirs shall take possession of the schedule mentioned property and enjoy the produce thereof. After my lifetime, you and your heirs shall take possession of the schedule mentioned property and enjoy the same from your son to grandson and so on in succession with absolute power of disposition by way of gift, sale, etc.,...

On the same date the aforesaid documents were executed Mastan Bi also executed a handletter in favour of Bikari Saheb, which is Ex. B-3. The effect of the letter is to curtail her right of enjoying the usufruct of the properties covered by Exs. B-l and B-2, for it has provided that if Mastan Bi were to live apart from the two donees, she would forfeit her right to enjoying the usufruct of the properties.

This was not registered. All the other four documents i.e. Ex A-l, Ex. A-2. Ex. B-l and Ex B-2, were written by N. Perayya, D.W. 4 and all the four were attested by D.W. 1. As regards Ex. B-3 it was written by D.W. 5 and attested by D.W. 3.

The relation between the parties did not continue to be cordial for very long and Mastan complains that in 1951 she was not permitted to receive the produce of the lands for that year. She (sic) no fund for sustaining herself and sold Acs. 5 (sic) of the land to the 2nd and the 3rd plaintiffs for (sic) 4,000. They on 27-4-1951 filed the suit giving (sic) to this appeal and have alleged in the plaint (sic) Mastan Bi had executed the two gift deeds on 9(sic) 1947, retaining possession of the properties for (sic) self and conferring vested remainders on the done that the donees had neglected and ill-treated (sic) that her remonstrances proved ineffectual and (sic) was obliged to leave the house about 4 months p(sic) to the institution of the suit.

They have further pleaded that the aforesaid deeds were void under the Mohammedan Law the donees did not get any right thereunder. All three defendants have filed separate written st(sic)ments, wherein they state that the several document together constitute a family arrangement which arrived at the intervention of mediators and that 3rd defendant was induced to part with property in excess of any legal claim against him, on co(sic)tion that the 1st and the 2nd defendants should absolutely entitled to specified portion thereof.

According to their case the 1st plaintiff was be entitled to maintenance only if she lived with 1st and the 2nd defendants. They further p(sic) that according to the advice of the mediators a deed was executed in respect of the entire prop that the 1st plaintiff executed two separate documents in favour of the two defendants rese(sic) for herself life interest and that the donees accordingly put in possession, the pattas of lands having been transferred in the names of 1st and the 2nd defendants.

Shortly put, the defence is that the legal (sic) of the several transactions was to confer imme(sic)titles in the property on the defendants, but the (sic)ferring was burdened with the obligation of (sic) taining the donor only as long as she resided the donees.

After considering several authorities the Court has found that Exs. B-l and B-2 were not as they vested the donees with the dominion the corpus immediately and without any reserv(sic). It has further held that the plaintiffs were no (sic)titled to recover any possession and had dismissed suit. During the pendency of the appeal Mast sold the remaining part of the property cover(sic) Ex. A-l to certain other persons, but she has died. Her death has simplified the decision (sic) appeal, because, should the arrangement cover B-1 and B-2 be upheld, no question would now of the donor of her purchasers being allowed (sic) ment of the properties.

Also any consideration of Ex. B-3 being would be equally immaterial because on the as (sic)tion of Ex. B-3 being void the vendor would no under Exs. B-l and B-2 more than what she h(sic) served and her purchasers would get nothing her death. Therefore the only question arisi(sic) decision in this appeal is : How far the arrange incorporated in Exs. B-l and B-2 are valid un(sic) particular school of Mohammadan Law to which parties belong? It is no longer disputed that Sh(sic) recognises a gift of a life estate; but the posi(sic) somewhat confused so far as the Hanafis ar(sic) cerned.

Before dealing with the several autl(sic) cited on behalf of the parties we would emphas(sic) distinction under the aforesaid school of Mohammadan Law between hiba (gift) and ariat (loan) distinction was ably pointed by the Subordinate in Haji Mohd. Faiz Ahmed Khan v. Haji ((sic) ned Khan, 8 Ind App 25 (A), where a question (sic) arisen as to the construction to be put upon two (sic)uments. One was a gift deed by the appellant (sic)uting two villages to one Waliunnissa, and the (sic)er was by the donee accepting the gift and giving her claim to moveables and immoveables constituting the ancestral estate of her husband.

The Sub Judge had found the gift to be abso(sic) which conclusion was approved by the High Court. Their Lordships of the Privy Council held (sic) the words in the gift deed about the donee (sic)aging the village for herself and applying the in (sic)e to meet her necessary expenses did not necessary cut the operation of the absolute gift. The rele(sic) passages from the judgment by the Subordinate (sic)e are to be found at page 26 of the report, and would quote the following extract from the afore(sic) passages:

to make a person the owner of the substance of (sic)ng without consideration is a hiba, while to make the owner of the profits only without consideration is an ariat....

This extract rests on Durra Mukhtar which that making one the proprietor of the profits for (sic)ing is ariat. It follows that ''hiba'' has become as(sic)ted with transfer of ownership and the several petitions necessary for making valid gifts would not essential for creating ariats. Thus in ariat it is not necessary for the donor to be of age, nor that the given should not be undivided. It equally follow that the prohibitions concerning what cannot be by gift would not extend to the rules governing (sic) for the ownership is not conveyed by the latter (sic)ction. We would now consider the several cases before us in support of the appellants: It was argued on their behalf that Mohammedan law does not recognise creation of life estates with (sic) remainder so far as the Sunnis professing the (sic) School of Mohammedan Law are concerned. (sic)t. Humeeda v. Mt. Budlun, 17 Suth WR 525 (B), the Judicial Committee has observed that (sic)eation of a life estate does not seem to be (sic)tent with the Mohammedan usage and there to be very clear proof of so unusual a transac(sic). This was followed by Abdul Wahid Khan v. (sic)uran Bibi, 12 Ind App 91 (PC) (C). Here a (sic)omise was entered into between a widow and (sic)ns of her deceased husband whereby the (sic) was to remain proprietor and the latter were (sic)ceed her. It was held that Mohammedan law does not recognise vested estates in remaining next is the case of Abdul Gafur v. Nizamudin, (sic)App 170 (PC) (D), where the intention of the was to make the estate devolved from one (sic)le or liable in execution for their debts. It (sic)ld that life rents as a kind of estate do not to be known to Mohammedan Law. Follow aforesaid authorities is Merrangani Rowther (sic)ur Meera Labbai, 24 Mad LJ 258 (E), a Division Bench has laid down that according Mohammedan Law the conveyance of an in a remainder is invalid and where a life is given with the remainder to another per(sic) donee of the life estate takes the property (sic)ely. We would now refer to Mohd. Abdul v. Mt Fakhr Jahan Begum, 49 Ind App 195: (922 PC 281) (F).

There the widow of a Sunni Mohammedan exceeded in favour of the brother of her deceased (sic) with the exception of certain villages and (sic)ds which were to remain during her lifetime possession free of rent and without payment of (sic)ment revenue. She further stipulated that she keep the excepted villages during her life (sic) any power of alienation and the donee would owner thereafter. It was held that the deed should be read as making a gift inter vivos of the excepted villages and (sic) land and was valid. Sir John Edge observed at page. 208 (of Ind App): (at p. 288 of AIR) that the interest which she reserved for her life was the usufruct of the property in question and the document was valid. To quote the very words:

In their ''Lordships'' opinion the deed was intended to be and to operate as an immediate and irrevocable disposition of ail Munni Bibi''s movable and immovable property, and all her Zamindari and Lambardari estate mentioned in the deed and in the schedules to it, subject to the reservation for her own use during her lifetime of the usufruct of the property in question here and it must be construed as a deed of gift and not as a will.

We take this decision as laying down the broad proposition that just as an owner can convey ariat rights in his property to another, while retaining the ownership in himself, so he can convey the ownership by gift of his property to another retaining for himself the ariat rights in his properties. We now come to Amjad Khan v. Ashraf Khan, 56 Ind App 213: (AIR 1029 PC 149) (G). In the case the donor by the deed gave his wife his entire property, as to 1/3 with power to alienate and as to the rest she was not to possess any power of alienation but was to remain in possession for her lifetime, and after the donees death the entire property was to revert to the donor''s collateral. Their Lordships, holding the subject matter of the gift to be life interest only dismissed the appeal by the donee''s heir. Their Lordships, however, did not decide that the life estate thereby created had become enlarged into an absolute estate. We would not deal in this case with the argument that may be built on this decision about its having overruled the earlier decisions on the condition in the gift for life being invalid and such gift conveying full ownership, because of the view we take of the estates gifted by Exs. B-l and B-2.

It cannot however be denied that in the case it was assumed that life estate cannot be created by hiba. Contrary to the series of the authorities referred to the last pronouncement of the Privy Council in Nawazish Ali Khan v. Ali Raza Khan, 75 Ind App 62: (AIR.I948 PC 134) (H), has been treated as permitting creation of life estate by gift. We do not think the authority goes as far. In so far as the case is of Shias the decision can hardly be treated as direct authority on ''hiba'' according to the Hanafi School of Sunni Mohammedans. But there is at page 79 (of Ind App): (at p. 139 of AIR) the following observations:

Their Lordships think that there is no difference between the several schools of Muslim Law in the 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 on 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.

We do not take the aforesaid observations as making a gift of the ownership for life estate as valid according to all schools of Mohammedan Law, because their Lordships cannot be taken as laying down that the conditions essential to a gift according to the personal law of the donor should be disregarded. Hiba according to the Mohammedan jurists of certain schools has become associated with the transfer of full ownership and because of that association, any limitation on the ownership and curtailment of its enjoyment while it was being so transferred has been held as invalid. On the other hand, where an estate not conferring ownership is recognised by the law, there are no reasons why the donor should be precluded from limiting such an estate by the duration of time.

We have mentioned earlier that separation of ownership and enjoyment of property was known to the law and it follows that where only ariat rights are being conveyed to a person, they can be limited by time. We, therefore, take the observations of the Privy Council as laying down the proposition that conferring enjoyment over property for life is not illegal. Having taken this view, we agree with the observations in Siddiq Ahmad and Another Vs. Wilayat Ahmad and Others, , that creation of a life estate by gift or will is not possible under the Mohammedan Law and that no Court has a right to make out a new will for the testator, if the will be not capable of an interpretation which would validate it.

In Nagoor Ammal and Another Vs. M.K.M. Meeran and Others, the document conferred on Nainammal only a life interest in the income of the suit property and the right to the corpus continued to remain with Hussain Meera. On his death it was held that the succession would open to his heirs, as the corpus was left unaffected, but so far as the enjoyment of the income therefrom was concerned it would be postponed till the death of Nainammal. There remain two further cases that have been cited before us. One is a single Judge decision of this Court in Shaik Khatum Bibi v. Mahamad Zhina Bi, 1956 AP WR 77l (K). In the case the learned Judge has held that Courts might reasonably construe a gift for life where there is no compelling language to the contrary, as a gift of the usufruct for life so as to conform to the Muslim Law governing Hiba.

We do not think the authorities justify any such far-reaching conclusion. On the other hand, it would be more consistent with the rules of such law to hold the limitation concerning gift for life to be void and the donee of the corpus getting absolute ownership over it. The last case is or a Division Bench of the Madras High Court. This is K. Veerankutty Vs. Pathummakutty Umma and Others, where it has been decided that the reservation of the usufruct of the property being the subject of a gift does not by itself make the gift of that property void under the Mohammedan Law and that principle applies not only to Shias but also to Sunnis.

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 rule 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 Exs. B-l and B-2 be of this kind, they would be valid.

The passages in Exs. B-l and B-2, which persuades us to hold their having conveyed immediate rights in the donees can be shortly stated. The relevant part of Ex. B-l reads as follows:

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.

Similarly the relevant passage in Ex. B-2 leads thus:

I have........ conveyed to you under dakh the hereunder schedule mentioned immovable property....... belonging to me and created rights you in the property now itself.

In our opinion, the intention indicated these parts in the two documents is that the done were being then vested with the rights, which (sic) owner had. Thereafter what the donor preserved (sic) herself was the retention of the properties which, according to the later passages in the document would for enjoying the produce till her lifetime. Mastan (sic) in her cross-examination as P.W. 1, admits that (sic)1st defendant and farm servants plough the la(sic) and that the third defendant was paying the kist. S(sic) further admits that she herself had not leased (sic) lands to other persons.

Also Madhav Rao, D.W. 1, states that the 1st defendant was cultivating the lands. D.W. 2, who is 3rd defendant, swears that the 1st & the 2nd defendants were in possession of 8 1/2 acres. Exs. B-9(sic) B-10 are certified copies of the application for tr(sic)fer of pattas in favour of the donees. Exs. B-5 to are abstracts of cultivation accounts for Faslis 18 1359, 1360 and 1361 respectively showing that defendants No''s. 1 to 3 were in possession of Su(sic) No. 110. In addition, Ex. B-l shows the 1st defendant as having raised tobacco on Acs. 1-50 cent 1950-51.

In these circumstances we have no doubt Mastan Bi conveyed ownership of the proper which she got from her brother, to her nephew niece on the dates of Ex. B-l and Ex. B-2 and delivered possession to the donees. It is equally (sic) that she reserved only rights in the usufructs for self during her life, because she had in both the documents stipulated that she shall not affect any ali(sic)tion and create any right and interest in respect the property in any manner during her life.

Then Mastan Bi in her cross-examination as (sic) admits that if the 1st and 2nd defendants mai(sic) her, they should enjoy the property. That was arrangement. It follows that the donor reserved herself enjoyment of the produce of the property and vested ownership in the donees. That being nature of the arrangement, the limitation on the (sic)duce being enjoyed for lifetime would not be vo(sic).

Emphasis on behalf of the appellants laid on certain passages in Ex. B-3, wherein (sic) been stated that: the property shall pass to (sic) Saheb with absolute rights after the executant''s time. In the document she has further stipulated if at any time she happened to live in other vi(sic) Bikari Saheb shall enjoy the property covered (sic) dakhal deed executed and delivered by her in (sic) of him and his wife. We are not prepared to that by mere use of the word "lifetime" in the (sic)ral documents Mastan Bi intended to convey vested remainders in favour of the donees.

Had that been her intention she would no applied for transfer of patta in favour of one donees. Nor the gift deed would have been accompanied with the possession of the property and the language of the gift deed indicate (sic) conveying of ownership and the reservations (sic) the enjoyment of the usufruct. Such reser(sic) amount to creation of ariat rights and such rig(sic) be revoked according to Mohammedan Law. (sic) opinion Ex. B-3 only shows the conditions which the rights reserved for the donor were to (sic)nue. We, are, therefore, of the opinion that t(sic) Court has not erred in upholding the alienati(sic) vered by Exs. B-l and B-2 and therefore the fails and dismissed. We further agree with t(sic) Court that this is a fit case where the parties bear their costs throughout.