1927 (6) TMI 2 - HC - Indian Laws

Summary

Issues Involved:

1. Plaintiff's claim as a residuary of Yusuf.
2. Validity of the oral gift and registered deed of gift from Lajman to Defendants 2 and 3.
3. Application of the doctrine of musha in Mahomedan law.
4. Nature of the transaction under the deed dated 30th October 1917.
5. Determination of Lajman's interest in the properties transferred under the deed.

Detailed Analysis:

1. Plaintiff's Claim as a Residuary of Yusuf:

The plaintiff claimed his title to the property partly as the heir of Yusuf and partly as the heir of Lajman. Defendants contended that the plaintiff's rights as a residuary were merged in his nearer relationship through Lajman. The court found no authority supporting the defendants' contention and held that the rule of propinquity applies within a class but not between classes. Therefore, the plaintiff did not lose his rights as a residuary of Yusuf.

2. Validity of the Oral Gift and Registered Deed of Gift from Lajman to Defendants 2 and 3:

Defendants claimed the properties were transferred to them by Lajman through an oral gift and a registered deed of gift. The court upheld the trial judge's conclusion that the factum of the oral gift was not established. Regarding the registered deed of gift, the court examined the deed dated 30th October 1917, which was duly executed and registered. However, the trial court found that the transaction could be treated as a simple heba, which was subject to the doctrine of musha, making it invalid due to lack of delivery of possession.

3. Application of the Doctrine of Musha in Mahomedan Law:

The court elaborated on the doctrine of musha, which invalidates gifts of undivided shares in divisible property unless possession is delivered. The court cited various texts and precedents, concluding that the doctrine of musha applies to all heba, except where it is impractical. The court found that the registered deed of gift was invalid under the doctrine of musha as the defendants did not prove delivery of possession.

4. Nature of the Transaction under the Deed Dated 30th October 1917:

The court analyzed whether the transaction under the deed was a heba (gift) or a sale. It concluded that the deed embodied a transaction of sale rather than a gift, as it lacked essential elements of a heba, such as the donor's intention to transfer without consideration and the necessity of seisin. The court noted that the transaction was falsely termed heba-bil-ewaz in India, but it was essentially a sale governed by the general contract law of India.

5. Determination of Lajman's Interest in the Properties Transferred under the Deed:

The court examined the extent of Lajman's interest in the properties. It found that the properties in Schedules gha and una were not given to her daughter or grandson as alleged by the plaintiff. The court held that the plaintiff failed to establish the alleged gifts. The court also agreed with the trial judge that the properties in Schedule ka belonged to Pabnuddin and passed to Lajman, Allarakhi, and Yusuf by inheritance. The defendants failed to prove the alleged gift of these properties to Lajman. The court upheld the trial judge's findings regarding the properties in Schedule ga and cha, concluding that the plaintiff was entitled to them.

Order:

1. The appeal was decreed with respect to:
- 49/144th share of the lands in Schedule ka.
- 53/288th share of the lands in Schedule kha.
- 11/36th share of plots 1 and 3 in Schedule ga.
- The whole of the lands in Schedules gha and una.
- 1/6th share of plots 1 and 4 in Schedule cha.

2. The decree of the subordinate judge was varied by dismissing the plaintiff's claim to the extent of the properties stated above.

3. The appellants were awarded half their costs against the plaintiffs-respondents in this court and against the plaintiffs in the lower court.

APPEAL No. 1302 OF 1923:

This appeal, heard with Appeal No. 72 of 1925, was dismissed along with the cross-objection. The court agreed with the district judge's decision that the plaintiffs were entitled to Lajman's interest in the properties transferred under the deed of 30th October 1917. Respondents 1 and 2 were awarded their costs of the appeal.