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TMI Blog1927 (6) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... s from defendant 1, and defendants 9 and 10 were joined as pro forma defendants. Defendants 2 and 3 alone contested the suit. The trial Court passed a decree in favour of the plaintiff. Defendants 2 and 3 have appealed. At the hearing of the appeal the defendants raised two main contentions : (1) that while it was conceded that the plaintiff was a residuary of Yusuf through a true grandfather (h h s), inasmuch as he was also related to Yusuf through Lajman as a distant kindred of Yusuf, and the latter relationship was nearer than the former, the plaintiff lost his rights as a residuary, for such rights were merged in the nearer relationship through Lajman; (2) that the properties in suit had been transferred to defendants 2 and 3 by Lajman, in part by a registered deed of gift, and in part by an oral gift. 7. In support of the first ground of appeal the learned advocate for the appellants was unable' to cite any decision or authority, but he referred to a passage in Baillie's Digest of Mahomedan Law, (2nd Edn. p. 704), where the learned author observed that: where there are several residuaries of different kinds, one a residuary in himself, another a residuary by anot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned in Schedules (ka) and (kha), including the said Pir Saheb and his asthana. From this day all the rights I have therein vest in you, and you and your sons and your grandsons and heirs in succession Shall remain in possession and enjoyment of the same. I hold no further interest or concern in the said properties and I shall not be able to lay any claim in future. You will be fully vested with, my absolute right. 4. From this day I leave all the above properties to your possession. As regards the rent-paying lands you will have the mutation effected in the office of the landlord, and as regards the rent-free lands you will have the mutation effected in the collectorate if necessary. You will enjoy the properties in all the schedule according to your wish and remaining a shebait of Sri, Sri Satyapir Saheb in respect of the properties of Schedule (kha). You will continue to be in possession and enjoyment of the same as such and will perform the specified services, such as lighting of lamps, etc., and you will exercise all my rights. I shall have no objection thereto. 5. You will have to maintain me and pay ₹ 999 as the annual expense for my maintenance and in case of il ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent works. Now I have come to learn that the said Yusufuddin had a sinister motive and got some of my properties recorded in his own name. The said record is entirely incorrect. The said person never took possession of any of my properties. I have all along been in possession of all the properties. The said Yusuf never had nor has any interest in the said property. Vested with my rights in all the above properties by virtue of this deed of gilt you will have the said incorrect record corrected. To this effect, having gone through the deed of 1 gift in the presence of witnesses and understanding fully the purport thereof, I execute it in sound health of my own accord, in good faith and without any request. Finis. Dated the 14th Kartik 1325 (Amli year) : 30th October 1917. 10. At the hearing of the appeal it was common ground that the deed of 30th October 1917 was duly executed and registered. The learned advocate for the respondent, however, contended, and the learned trial judge has found, that if this transaction is to be treated as a simple heba, it is amenable to the doctrine of musha (confusion) because : (1) Lajman possessed only an undivided share in the subject-matter of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ptance and seisin may be actual or constructive according to the circumstances of the case, but no transaction of which the above are not ingredients, is, or is to be treated as, a gift under Mahomedan law. 14. A gift may be a heba simple or a heba-bil-ewaz (gift for an exchange or a return gift), or a heba-ba-shurt-ul-ewaz (a gift with a stipulation for an exchange or a return gift), but in each and every variation of gift the transaction is a heba and must contain the essential elements that constituted a heba according to the Mahomedan law. 15. Now, a heba simple means a transfer of property made immediately and without any exchange: Hadays (Hamition Grady's Edition, Book 30.) Gift, as it is defined ii law; is the conferring of a right of property without an exchange: (Baillie, 2nd Edition, 515) The fundamental conception of a heba-bil-ewaz, in Mahomedan law is that it is a transaction made of two separate acts of donation, that is, it is a transaction made up of mutual or reciprocal gifts between two persons, each of whom is alternately the donor of one gift and the donee of the other: Rahim Bukhsh v. Muliammed Hassan [1888] 11 All. 1 The ewaz, or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the first case the condition being essentially future, as already observed, the act, which is made dependent on it, is necessarily suspended until the occurrence of the condition, while in the second case the act, which is made subject to the condition, takes effect immediately, with an obligation on the person benefited by it to fulfil the condition. 17. A condition in this sense may be fasid, that is, invalid or illegal, or it may not be so. Any condition inconsistent with the nature of the transaction to which it is annexed is clearly invalid, so, for instance, a condition in sale or gift of any advantage to the subject of the contract when there is a person entitled to assert it. But the effect of the illegal condition on the two contracts is different. In the case of sale the contract is overpowered by the condition, and invalidated by it; while in the case of gift, the contract throws off the condition and remains unaffected by it, the condition itself being void (Bailie's Introduction, XXXV, XXXVI); see also MacNaghten's Principles of Mahommedan Law, 4th Edn., pp. 217 to 221. 18. To every heba the doctrine of musha Applies, except in so far as it must be taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the whole of the house to each of the two donees (inasmuch as there is only one conveyance) there is consequently no mixture of property p. 485; see also MacNanhten, p. 201. 21. Now, the Mahomedan lawyers in India being desirous of evading the difficulties and inconvenience to which-donors were exposed by reason inter alia, of the doctrines of seisin and musha, with no little subtlety planned a contrivance by means of which a mahomedan could effect a gift without conforming either to the Mahomedan law of heba or the general law relating to the sale and transfer of property. They invented a form of so called heba whereby the gift in its inception is made for a consideration present or future which may be either in kind or a promise to door omit to do something in the future. But if the exchange is in the original transaction, as when one thing is given in exchange for another, there is a sale from the beginning: as sale may be contracted by the word give as-well as by the word sell And the transaction which is termed heba-bil-ewaz, has thus become a device in India for giving effect to the gift of musha in a thing susceptible of partition which may be lawfully sold, thoug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the gift in return, but neither seisin nor musha apply to the false heba-bil-ewaz, because such a transaction is not a heba at all, and nothing more or less than a sale, per Kemp and Seton Karr JJ., in Khujoorroonissa v. Rowshan Jehan : vide 3 I.A. 296. Such a transaction would be governed by the general contract law of India, including those chapters of the Transfer of Property Act which treat of sales and exchanges, and which, like the Indian Contract Act, contain no saving clause exempting Mahomedans. The Mahomedan law of sale having confessedly ceased to be administered co nominee since 1872 (except in the matter of preemption) one would hardly expect it to be revived merely by attaching the name of gift to a transaction which is said to resemble sale in all its incidents; Wilson's Digest of Anglo-Mahomedan Law, p. 338. 25. The observations of Sir Robert Collier in Khujoorroonissa v. Boioshan Jehan [1876] 2 Cal. 184 and of Sir Ford North in Chaudhri Mehdi Hasan v. Muhammad Hasan [1906] 28 All. 439, must be read bearing in mind the distinction that is to be drawn between the true and the false heba-bil-ewaz. In my opinion the trasaction falsely termed in India h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring her life time, although she was minded to provide that if she died during her haj to Mecca they should pass to her, daughter and her grandson. She did not die on the haj, however, but returned to India, and resumed possession and control of these properties. In my opinion the plaintiff failed to establish that these properties were given to the alleged donees, or that the donees accepted the gift or obtained seisin of the property as required by law. Another matter in issue is -whether Lajman obtained a transfer of certain of the properties in suit by way of dower from her husband Pabnuddin. The learned trial judge has held that the gift of the properties alleged to have been made by way of -dower was not proved. In my opinion the evidence adduced by the defendant upon this issue was vague and unreliable, and I am disposed to accept the decision of the learned trial judge upon this matter. As regards the properties in Schedule ka I agree with the conclusion of the trial judge upon the evidence that these properties belonged to Pabnuddin, and passed upon his death by way of inheritance to Lajman, Allarakhi and Yusuf and that the defendants failed to prove the alleged gift of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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