9911796707
TMI Blog1896 (12) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... trar of Agra on the following day. The deed is printed at page 18 of the appellant's book. In it the executant sets forth that he is the absolute owner of certain property detailed in the deed, situated in the city of Agra and in certain villages of the Agra district; that he is about seventy years of age and has now become feeble and weak, and that owing to the death of his three grown-up sons he has become much dejected, and that there is no certainty of this precarious life. The deed goes on: Therefore I have of my free will and without any coercion or compulsion, while in a sound state of body and mind, made a gift of the whole of my property detailed below to my daughter, Anwari Begam, and put the donee in possession of the whole of the aforesaid property. I have removed and severed my possession and proprietary connection from the said property. The deed goes on to provide that the donee shall pay the executant one hundred and twenty rupees annually for his maintenance, either in monthly or half-yearly instalments as may be convenient to the parties. Failing payment of this annual amount the donor is empowered to recover it through the Court. The property conveyed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... self no possession, of this property, and was therefore, according to Muhammadan law, incapable of making a valid gift of it. The share in Pingri being thus in the hands of the Collector it was possible and legal for him, if the arrears had not up to that time been cleared by the usufruct, to retain possession of it for the maximum period of five years, from the 1st of July next after the attachment vide Section 156 of Act No. XIX of 1873. It is clear that, although the donor had not actual possession, the ownership of the village had not passed away from him. It was open to him at any period to pay off the arrears and regain absolute possession of the property, and in any case he could not be kept out of possession for a longer period than five years. It was strenuously argued by the learned Counsel for the respondent that under the Muhammadan law a gift could not be made of a share in a village which was the subject of such attachment. The decision of this point brings us to the consideration of the question, what property can form the subject of a gift according to Muhammadan law? In Grady's Hamilton's Hedaya, a work of considerable, but not infallible, authority on Muha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han v. Hosseini Bibi (1888) I.L.R. 15 Cal. 684, the Privy Council upheld a gift of property which was not at the time of the gift in the donor's possession. It was held in that case that as the donor had done all that she could to perfect a complete gift which was attended with complete publicity, and as the donee had afterwards obtained possession, the fact that the donor had been out of possession and therefore had not delivered possession did not of itself invalidate the gift in favour of the respondent. There is a decision of the Bombay High Court in the case of Mohinudin v. Manchershah (1882) I.L.R. 6 Bom. 650, in which two Judges held that the owner of property which was in the possession of a mortgagee could not, under the Muhammadan law, make a gift of it. Kemball, J. dissented from this view. With reference to this case it was remarked by Mahmood, J., in the case of Rahim Bakhsh v. Muhammad Hasan (1888) I.L.R. 11 All. at p. 10: I may respectfully say that it probably carries the rule as to seisin too far. Mr. Ameer Ali, at page 61 of the aforesaid volume, says, with reference to the case of Mohinudin v. Manchershah: The view taken by the majority of the Judges is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of this share until the 14th of April 1892. The fact, however, remains that those proceedings were taken at the instance of the donor, and in order expressly to give effect to his gift, and were completed in his lifetime. We consider that where possession is transferred by a donor to a donee in pursuance of the deed of gift previously executed, the provisions of the Muhammadan law are satisfied and delay is immaterial. The delay which took place was explained by the learned Counsel for the appellant as to some extent referable to the fact that the deed of gift had been filed in the Muttra proceedings which did not terminate until January 1892, and there was consequently a delay in getting the document from that district for the initiation of proceedings in relation to the village in the Agra district, It is not to be forgotten that the decision of the Revenue Court in mutation proceedings is based upon a transfer of possession effected before mutation takes place. Upon the weight to be attached to the decision of the Revenue Courts in such proceedings, the following observations of the Privy Council in the case of Muhammad Mumtaz Ahmad v. Zubaida Jan (1889) I.L.R. 11 All 460; at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... menced and the revenue paid before the mutation of names in the Collector's office, at a time when actions for rent and payment of revenue would in all probability be brought and made in the name of the person entered as the proprietor in the Collector's book. In this case also two receipts for revenue paid in the name of Ghulam Jilani are relied on. One of these for ₹ 200 is dated the 4th of May 1892. The sum purports to have been received from Ghulam Jilani as lambardar and on account of the rabi instalment of 1291 F. At the time of that payment Ghulam Jilani's name stood in the Government books as the proprietor of the share and also as lambardar. The second receipt is dated the 18th of July 1892, and is for ₹ 24-14-3. The money purports to have been received from Ghulam Jilani, lambardar, on account of revenue, miscellaneous items. At the date of this payment mutation proceedings had terminated, Anwari Begam's name having been substituted for Ghulam Jilani's on the 23rd of June 1892; but the receipt does not show on account of what instalment the money was paid, and from the amount of the payment and its date we have little doubt that it was on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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