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TMI Blog1938 (8) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... respectively. It was contended that defendant l, Mt. Ghulam Aisha, waft a mistress of the deceased Haji Muhammad who falsely claimed to be the wife of the deceased, and to be entitled to some of the properties under a deed of gift made by the deceased which was void. Defendant 2 supported the plaintiff's claim. It may be explained that defendant 1, Mt. Ghulam Aisha, was originally a Hindu woman, named Lachibai, the wife of one Godhoo, who died in February 1918. While her husband was still alive, she became a convert to Islam and married deceased Haji Muhammad according to Muslim rites in 1877. She lived with him for some time, after which on account of the wishes of the parents of Haji Muhammad, she was divorced and sent away and Haji Muhammad then married one of his own relations. A couple of years later, on the death of his wife, Haji Muhammad again took Mt. Ghulam Aisha back, and again married her on 10th September 1886. Thereafter Mt. Ghulam Aisha continued to live with Haji Muhammad until his death in 1929. In September 1915, Haji Muhammad executed a deed (of which Ex. 126 is a copy), titled a hiba-bil-iwaz under the terms of which he made a gift of all the properties o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that all the lands mentioned in Sch. A and the houses Items 1 to 7 in Sch. B had been gifted to her and had been in her possession since September 1915, that the remaining houses in Sch. B had been purchased by her and were in her possession, and denied that the moveable property shown in Sch. D was Haji Muhammad's. She pleaded that she had been married again after her first marriage and divorce, to Haji Muhammad, according to Muslim rites, when her dower had been fixed at ₹ 10,000 and that in 1915, Haji Muhammad made the gift to her in lieu of her dower. She also contended that the suit was time-barred by her adverse possession of these properties since 1915. While this suit was still pending before the lower Court, Mt. Ghulam Aisha died on 15th December 1931. As she died intestate and without leaving any heirs, all her property escheated to the Crown, and the Secretary of State was accordingly joined as a party on 23rd May 1932 and is respondent 1 before us. 7. The learned Judge who tried this suit held that as Mt. Ghulam Aisha's husband Godhoo was alive till 1918 and her marriages with him subsisted in law until his death, her marriages with Haji Mohammad in 187 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the deceased Haji Muhammad himself of which possession had never been transferred or given to Mt. Ghulam Aisha; and thirdly, that the property shown in Sch. C and. particularly the hundis were part of the property left by the deceased Haji Muhammad as Mt. Ghulam Aisha was merely a Henamidar in respect of this property. We cannot see how it is possible to find any substance in the argument that the learned Judge in upholding the gift in 1915, made out a new case for the plaintiff which had not been set out in the pleadings. Mr. Dipchand argued that the deed of 1915 was relied upon by Mt. Ghulam Aisha to prove a sale transaction. He relies on a passage in the evidence of Mt. Ghulam Aisha taken on commission in which she says : A Kabin (dower) of ₹ 10,000 (ten thousand) was fixed at the time of the marriage at Ranipur before Pir Ghulam Mahiuldin. After the marriage I came and lived in this building where I am now living. I used to live with my husband, as long as he was alive, in this building. In lieu of the Kabin (dower) he had given this building by getting my name registered. Q. Did he effect a sale of the property in your favour or he gave it to you as a gift ? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Mr. Dipchand himself: A gift may be a heba simple or a heba-bil-iwaz (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 constitute a heba according to the Mahomedan law. 14. Therefore, whenever a transaction is relied upon as being a 'hiba-bil-iwaz' it necessarily includes the allegation that it is a 'hiba' valid according to Mahomedan law. In 28 All 439 Chaudhuri Mehdi Hasan v. Muhammad Hasan, (1906) 28 All 489=9 OC 196=33 IA 68=3 ALJ 405 (PC) even where a transaction described as a 'hiba-bil-iwaz' was relied upon as being in reality a conveyance for value and the case so set up was found to have failed by reason of the fact that no valuable consideration had ever passed, their Lordships of the Privy Council still considered it important to consider whether the possession of the property comprised in the deed had or had not been delivered to the defendant as had been alleged, for, it was held that the transaction would, under the circumstances, have been a vali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a were at the time occupying one of the houses gifted and on 22nd September 1915, Haji Muhammad executed and registered an agreement (Ex. 124) in which he stated that he had gifted the house by the deed executed by him on 9th August 1915 and he would live as a tenant in that house with his wife Mt. Ghulam Aisha : The rent has been fixed at ₹ 10 per annum. The above building has been hired on rent for a period of five years from the said Mt. Bibi Ghulam Aisha. After the expiry of the period of five years the said proprietress is at liberty to eject me or to let me continue in the occupation of the building. Hence I have executed this rent deed so that the same may be utilized whenever necessary. 16. A large number of similar documents, have been produced, agreements of tenancy as well as leases of agricultural lands (Exs. 182 to 194 and 196 to 198) executed between the date of gift and 1929, in all of which Mt. Ghulam Aisha is shown to be the owner, and in most of which Haji Muhammad is specially mentioned as her 'mukhtiar' or attorney. Even Abdul Majid, a nephew of Haji Muhammad and son of defendant 2, on occupying one of the houses gifted, was required to execu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant has not been able to point out to us any facts or circumstances from which any such conclusion could be rightly drawn. The learned advocate laid much stress on the statement of some of the plaintiff's witnesses that Mt. Ghulam Aisha was a very poor woman, but this statement appears to us to be clearly false. We can see no reason to disbelieve the evidence of Mt. Ghulam Aisha herself that she had ₹ 10,000 to ₹ 15,000 of her own at the time of her second marriage to Haji Muhammad in 1886,and she must have greatly increased her personal property after 1915. The evidence of witness Hassomal (Ex. 216) supported by the statement produced by him (Ex. 217) proves that Mt. Ghulam Aisha had extensive dealings in hundis, all done by herself in her own name. It is also well settled law that before any transaction can be held to be benami it must be clearly shown that it was not carried out for the benefit of the alleged benamidar but for the benefit or for the protection of the interest of the alleged true owner, and in this case all the circumstances point definitely to the contrary. The result is that we do not see any reason to interfere in any manner with the decree pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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