This regular second appeal has been filed by Farid (plaintiff/ appellant) against the judgment and decree, dated 21st September 1965, passed by the learned District Judge, Lyallpur, whereby the judgment and decree, dated 2nd February 1965, of the learned trial Judge dismissing the declaratory suit of the appellant was confirmed.
2. The circumstances leading up to this appeal, briefly stated, are that the appellant had no male issue in spite of marrying twice. Therefore, he married Mst. Nur Bibi, the defendant/respondent in the hope of getting a male issue from this wedlock. At or about the time of this marriage, the appellant gifted the land in dispute (52 kanals 10 marlas including a kotha thereon) to the respondent, by means of mutation sanctioned on 8th December 1940. The mutation mentioned the gift as being for life of or remarriage by the respondent, by the use of usual words: " TA HAIN HAYAAT TA NIKKAH SAANI ". At the time of this marriage, the respondent had two pichhlag daughters and one son from her previous husband. Un--fortunately, the purpose of this third marriage, for the appellant, was not served because no male issue was born from this wedlock. It appears that some estrangement took place between the parties in 1962 and, according to the learned counsel for the appellant, the respondent has since been divorced probably during the pendency of the suit.
3. The plea of the respondent, in the written statement, was that she had obtained the possession at the time of the gift which was complete in every respect and could not be revoked. The pleas of limitation and estoppel were also raised. In the alternative, it was maintained that the possession of the res--pondent having been for more than twelve years as owner, she had become the full owner of the land in dispute. An objection as to the form of the suit for declaration was also raised.
She specifically pleaded that the possession having been obtained by her, she continued, from the very beginning to have received the produce of that land and that the appellant had no connection with the land. The learned trial Judge framed the following issues:-
(1) Whether the suit is maintainable in its present form?
(2) Whether the suit is within time? (O. P. P.)
(3) Whether the plaintiff is estopped by his conduct to challenge the gift in favour of the defendant? (O. P. D.)
(4) Whether the defendant has become the owner by adverse possession? (O. P. D.)
(5) Whether the gift by the plaintiff to the defendant must fail because it was never completed? (O.
P. P.)
(6) Relief.
Except for Issue No. 1 on the question of form of the suit, all other questions relating to possession/completeness or other--wise of the gift, limitation, estoppel and adverse possession were decided against the appellant. On the question of law as to whether the condition of reversion, to the donor, of the land in dispute, after the death or remarriage of the donee, the learned trial Judge held that this condition would be deemed to be void and the gift would be treated as complete without any such condition. 1n any case, it was further mentioned that the donee being alive and not having married again, the plaintiff/ appellant could not succeed on the basis of the gift being under the said condition.
The learned District Judge has practically affirmed the decision by the learned trial Judge on all the above-mentioned questions and dismissed the appeal. Therefore, this second appeal.
4. Ch. Muhammad Amjad Khan, the learned counsel for the appellant, has argued this appeal at length and has challenged the findings of the learned Courts below on the questions of delivery of possession under the gift, limitation and the legality of finding as to the absolute nature of the gift in dispute. No arguments, however, were addressed on Issue No. 3 which relates to estoppel and which has also been decided against the plaintiff/appellant.
5. The pivotal question to be decided in this case is that of possession In addition to their own statements, the parties have produced the following evidence on this question
(A) Documentary,
(i) Mutation No. 37 (Exh. D-9 and also Exh. P-49) decided on 8th December 1940, together with the entries made therein by the patwari qua roznamcha of 24th July 'and the entry of 8th August 1940, and that made by the Girdawar on 27th August 1940 and 5th December 1940 and the contents of the order passed by the Assistant Collector. This shows that the possession was delivered to the donee.
(ii) Entries in Khasra Girdawari from 1940 up to 1962 (Exhs. P-1 to P-7 and also Exhs. D-5 to D-7). This also shows that the possession was with the donee after the gift.
(iii) Receipts (Exhs. P-1 to P-47). They show that the land revenue and other charges were paid by the donor to the Lambardar.
(iv) Entries in the Jamabandis relating to 1943-44, 1951-53, 1955-56 and 1959-60 (Exhs. D-1 to D-4) showing that the possession was with the donee.
(v) A copy of the decision, dated 2nd March 1963, by an Assistant Collector (Exh. P-48) in a suit for ejectment filed by the donee against Ghulam Muhammad and Abdul Ghani, the tenants, which was decided in favour of the tenants. The donor, however, was not a party to these proceedings.
(vi) Dhal bachh (Exhs. P. W. 7/1 to P. W. 7/3) proved by Muhammad Rashid (P. W. 7) showing that the donee was in possession.
(B) Oral evidence.
(i) Ghulam Muhammad (P. W. 2), who remained as tenant on the land in dispute for about eight years and stated that possession remained with the donor. He is the husband of the daughter of the donor from his previous wife. (See D. W. 3, D. W. 6 and para. 4 of Exh. D-10). Khair Din and Abdul Ghani (P. W. 3 and P. W. 4) are also tenants and have supported Ghulam Muhammad.
(ii) Rehmat Ullah (P. W. 5), aged about 35 years, Muhammad Latif (P. W. 6) aged about 26 years, A.I Muhammad (P. W. 8) aged about 40 years and Faiz (P. W. 9) aged about 60 years, all Arains belonging to the same case as that of the donor, have generally stated that the possession remained with the donor.
(iii) Muhammad Rashid (P. W. 7) aged about 40 years, who is a Lambardar and proved the receipts about land revenue, etc. (Exhs. P-1 to P-47) showing that the land revenue was paid by the donor.
But in his cross-examination, he specifically admitted that according to the Dhal Bachh which is Exh. P. W. 7/ 1 to P. W. 7/3, Mst. Nur Bibi was mentioned as the party who was liable to pay the land revenue. He further stated that the donee used to be approached for the recovery of land revenue but it used to be sent to the Lambardar through the donor. At the end of his statement, he did not leave any doubt and categorically stated that the possession on the land in dispute is of the donee and the same continued to be so since the time that the land was gifted away to her.
(iv) A.I Muhammad (D. W. 1) aged 60 years, Khushi Muhammad (D. W. 2) aged 50 years and Muhammad Shafi (D. W. 6) aged 50 years, all Arains, generally stated that the donee was in possession of the land from the date of the gift. Out of them, D. W. 2 is related to the donee.
(v) Barkat A.I (D. W. 5) was the Patwari at the relevant time (1940). He knew the parties. According to him, a report in the roznamcha was entered at No. 384 on 24th July 1940, in respect of the gift in dispute. Farid, the donor, had made a statement in this connection and had also admitted that the possession of the land in dispute had been trans--feered. He said that he had entered mutation No. 37, and thus proved the entry in column No. 15 thereof, which is to the effect that the donor had gifted the land in dispute and had also transferred the possession thereof to the donee for her life (TA HAIN HAYAAT). He further stated that along with the Girdawar, he went to the spot and at that time the donor was present there.
6. I have tabulated the various items of evidence because an objection was raised by the learned counsel with regard to the misreading/non-consideration of evidence by the learned Courts below.
After going through the evidence, I am satisfied that the finding of the learned Courts below to the effect that the gift in favour of the respondent was accompanied by the delivery of the possession of the land, is not based on any misreading/non-consideration of evidence.
The possession was not taken by the donee in any surreptitious manner but was based on a conscious physical act by the donor of transferring the possession to the donee. It is pertinent to note that the donor gifted away specific Killa numbers of the square belonging to him and the remaining Killa numbers remained with him. Had the intention of the donor been not to deliver the possession, the transfer in that case would have been of a share in land and not that of specific piece of land. It is also pertinent to note that the entries in the mutation and other revenue record, mention the transfer by way of gift of arazi, i.e. Land, and the absence of reference to guzara or share in land is also significant. The entries in the Khasra Girdawari also clearly indicate a transfer of physical possession. Immediately before the gift, the land was in the self-cultivation of Farid but in partnership with Ghulam Muhammad son of Ibrahim on batai basis. After the gift, the next entry shows that the land came under the self-cultivation of the new owner, i.e. Mst. Nur Bibi donee and there is no mention of this self---cultivation in partnership with anybody. This signifies a material change immediately after the gift, so far as the cultivation is concerned. A.I Muhammad (D. W. 1) has stated that when the possession was transferred to the donee, one Sooba Arain used to cultivate the land, as the servant of the donee. The statement is clearly corroborated by the entry in the Khasra Girdawari referred to above. In 1943, the Khasra Girdawari shows that the donee entered into a partnership with one Qadir Bakhsh as sanji. In 1945, for the first time, the land was given on batai to A.I. Muhammad tenant under Mst. Nur Bibi the donee. And thereafter up to 1961, there are several changes with regard to the persons who cultivated the land as tenants. But the fact remains that the entries throughout show the possession of Mst. Nur Bibi donee, of course, through those tenants. They are Abdul Ghani, Muhammad Bakhsh, Khushi Muhammad, Ghulam Muhammad and Khair Din. . The various changes in the cultivation also, to some extent, indicate that the lady herself started managing the land and adopted the mode of cultivation which suited her. Not only the entries in the Khasra Girdawari but those in the jamabandis (Exhs. D-1 to D-4) clearly show that the land remained in possession of the donee throughout from the date of the gift. Copy of Jamabandi (Exh. D-1) which relates to 1943-44 is very important. It fits in with the entries in the Khasra Girdawari which show that soon after the gift the land came under the self- cultivation of Mst. Nur Bibi the donee. In column No. 11, i.e. Kafiyat mention is made of mutation No. 37 relating to the gift in dispute. In the Jamabandis, kotha ghair mumkin is shown on an area of 10 marlas. This is also shown in possession of the donee. In connection with the entries in the mutation, the Khasra Girda--waris and the Jamabandis, it is very important to note that the appellant/donor used to be present at the time of the making of these entries but he never objected to any one of them. In the mutation, it is noted that the donor was present and it was on his certification, of the changes being brought about by the said mutation, that the same was sanctioned. It is also mentioned in the order of mutation that the mutation was sanctioned in an open meeting and that Muhammad Bakhsh, the Lambardar, was also present. It appears that the mutation in question was effected with due publicity and that the donor had full knowledge of the entries made therein which clearly state that the posses--sion had been transferred. This is supported by the statement of the Patwari who not only proved the admission of the donor with regard to the transfer of possession but also went on the spot with the Girdawar at a time when the donor himself was present there. There is an entry shown to have been made by the Girdawar on the mutation which shows that all the entries made by the Patwari were correct; and those entries included the entry with regard to the transfer of the possession. This, to my mind, leaves no doubt that the possession was trans--feered. It was held in Ibrahim and others v. Fazal Dad and others (PLD 1957 Lah. 45) that the report of a Girdawar narrating the delivery of possession of land was relevant evidence under section 35 of Evidence Act and, in fact, in that case such a report was made one of the basis of a finding as to possession. With regard to the entries in the Khasra Girdawari and the Jamabandis, I have already indicated that they are very strong evidence against the/ donor with regard to possession. Farid himself stated as P. W. 2 that he or the tenants used to give information at the time of Girdawari operations. To be very precise, he admitted that the Girdawari used to be done on his or the tenants' statements. He was duly confronted with the entries in the Khasra Girdawari, thus made, on the basis of the above--mentioned statement, to which his only explanation was that he did not know how the entry as to self-cultivation of Mst. Nur Bibi appellant was made in the Khasra Girdawari. He did not deny that he used to be present at the time of the prepara--petition of the Jamabandi. However, it is in the statement of P. W. 5 that no objection was ever raised on the preparation of the Jamabandi. The Lambardar of the village, who appeared on behalf of the appellant, clearly proved that the possession was transferred at the time of the gift and it remained with the donee without any interruption. The statements made by the tenants, one of whom is the son-in-law of the donor, go against the record and are controverted by disinterested and more reliable persons, i.e. The Lambardar and the Patwari.
Similarly, the state--ments of the other witnesses produced by the appellant to show that possession was not transferred do not inspire confidence, particularly in view of the overwhelming documentary and other reliable evidence to the contrary.
The learned counsel for the appellant argued that the whole revenue record is based on the entry, dated 24th July 1940, in the roznamcha of the Patwari which has not been produced, and thus the entries in the revenue record should not be relied upon. I have analysed the documentary evidence. It is not correct that the entire revenue record depends upon that entry. It was only in column No. 13 of the mutation that the said entry is mentioned. Otherwise in column No. 15, the entries made by the Patwari and the Girdawar are based on their personal knowledge. In any case, the Patwari has appeared as a witness and has proved, by direct evidence, the admissions made by the appellant in respect of the gift and the possession and what he, along with Girdawar observed at the spot. Similarly, by the subsequent entries in the Khasra Girdawari and the Jamabandis or, for that matter, by the evidence of the Lambardar with regard to the liability to pay the land revenue (being of Mst. Nur Bibi donee) the adverse effect, if any, with regard to non--- production of the Roznamcha, is nullified. In my view, it cannot be said that the Roznamcha has not been produced because of any fear that it may have gone against the donee. It appears to be an inadvertent omission. Had there been anything in the entry in the Roznamcha, against the donee or in favour of the donor in respect of the possession, the appellant would have produced the same in rebuttal. I have noticed from the record that after the evidence by the donee/respondent, the appellant/ donor did avail of the opportunity of producing the evidence in rebuttal but failed to summon the Roznamcha. This shows that the entry in the Roznamcha would, in no way, have supported the appellant if it had been produced. The learned counsel also surmised that the possession, if at all delivered, was subsequent to the making of the gift. There is nothing in the evidence to support this supposition. No question was either put to the Lambardar or to the Patwari in respect of this contention. The entries in the mutation show that the possession .Was transferred to the donee at the time of the making of the gift.
The learned counsel then contended that the possession, if transferred, was not under the gift and has relied on Hidayat and others v. Najabat and others (PLD 1966 Lah. 764). The question involved in the cited case was different. It does not support the contention of the learned counsel. However, I have already held that the delivery of possession of land was under the gift and it N as not by way of any other mode of transfer. The learned counsel also relied on Ghulam Hassan and others v.
Sarfaraz Khan and others (PLD 1956 SC (Pak.) 309), to show that a recital as to delivery of possession, in a deed (or in a mutation) by itself was insufficient to prove the delivery of possession. The facts of that ruling are also distinguishable from those of the present case. In this case it is not only an entry in the mutation which proves the delivery of possession but also various other items of evidence enumerated and discussed by me in this judgment, and particularly the conduct of the donor himself the learned counsel also vaguely suggested that the order of mutation does not contain any finding of transfer of possession. I do not agree with him. The use of the words "hasab tasdeeq", "Hibba" "Khata No. 17 Square No. 22 Killa Nos. 1 to 5 and 6/1 area 52 kanals 10 marlas" and "manzoor he" together with the entries in various columns of the mutation, particularly columns 9 and 10 which show the change of possession and which must have been noticed by the Tehsildar before sanctioning the mutation, slow that the Tehsildar was conscious of the delivery of the possession. Had it not been so, he would not have sanctioned the mutation. The learned counsel also relied on Rullia and another v. Mangla (AIR 1934 Lah. 197) and K. S. Muhammad Aslam Khan v. Khalil Rehman Khan and others (PLD 1947 P C 73) to show that mere mutation of names is not enough to prove the delivery of possession. The donee must prove some act showing control over land, in order to prove that the gift was complete. The evidence produced in this case has proved that the possession had been transferred and the donee was in control of the land in dispute and, therefore, the gift was complete. Thus the rulings cited do not help the learned counsel. In this connection it must be stated that the proof as to the delivery of possession depends upon the circumstances of each case. In this particular case, the donor is the husband while the donee is the wife. Therefore, while considering the effect of the decided cases, this circumstance will have to be kept in mind. In Nawab Mirza Muhammad Sadiq All Khan and others v.
Nawab Fakr Jahan Begum and another (AIR 1932 P C 13), it was held that a gift of immovable property must ordinarily be completed by a transfer of possession. And in a gift by a husband to his wife of the gift deed contained the statement: "I deliver possession of the gifted property to my said wife"; and the deed of gift was handed over to the donee after registration, it was held that the declaration in the deed was binding on heirs of donor and that actual vacation by the husband and an actual taking of separate possession by the wife was not necessary. The declaration made by the husband, followed by the handing over of the deed, was amply sufficient to establish a transfer of possession. In the present case, however, the donee's case is en much stronger footing.
Not only that the donor made statements during the mutation proceedings but also his conduct of certifying the same when the Patwari and the Girdawari visited the spot and when the Khasra Girdawari and the Jamabandi were subsequently, on many occasions, prepared. In Ma Mi and another v. Kallander Ammal (AIR 1922 P C 22), it was held that in the case of a gift of immovable property by a Muslim husband to his wife, once mutation of names has been proved, the natural presumption arising from the relation of husband and wife, existing between them, is that the husband's subsequent acts with reference to the property were done on his wife's behalf and not on his own. In the present case, it has been suggested that the donor paid land revenue; but the Lambardar has stated that the demand was always made from the donee and that the donor paid the land revenue on her behalf. It has also been suggested that the donor has been changing the tenants on the land in dispute. I have absolutely no doubt, on the basis of the evidence analysed by me, that the donee herself had effective control on the land in dispute. But even if the husband did any act with regard to the land, it must be presumed to have been done on behalf of his wife. In this very connection, I may mention that reliance has been placed on the receipts issued by the Lambardar for payment of the land revenue, in which the name of the donor is mentioned. My finding is that, as mentioned earlier, it is of no benefit to the donor in this case. The payment was made on behalf of the donee. Reference has also been made to the fact that there was a litigation before the Revenue Court between the donee and Ghulam Muhammad, the tenant, with regard to the latter's ejectment, and reliance has been placed on a decision in favour of the tenants vide Exh.
P.
48. That judgment is not a judgment inter partes and, therefore, cannot be used against the donee. In any case, the issues involved in that case and decided by the Revenue Court were not the same as are involved in the present case, and thus there is no question of the donor's getting any benefit from that judgment and the same was not binding on the learned trial Judge in this case.
The learned counsel also argued that there is no proof of the attornment by the tenants in favour of the donee. I have already mentioned in the various entries in the Khasra Girdawaris and have also referred to the statement of the Lamhardar and the entries in the Jamabandis. There is no question of the attornment in this case. When the gift was made, the land came under direct possession, i.e. Self-cultivation of the donee and, thereafter, the donee has been either cultivating the land in r partnership with others- or has also been getting it cultivated 2 on batai from the tenants. Thus there was no occasion for attornment. The fact that the tenants have made statements adverse to the interest of the owner/donee, cannot go against her and, in any case, those statements are controverted by, as I have held above, more reliable, documentary and oral evidence.
The result of the above discussion is that the possession of the land in dispute was transferred to the donee under the gift and at the time of the gift. There is no other fact showing that the gift was incomplete. Therefore, I uphold the findings of the learned Courts below on Issue No. 5.
7. With the above finding with regard to the possession, the question of limitation does not present any difficulty. The learned counsel for the appellant has relied on Articles 142 and 144 of Limitation Act, to contend that the possession having remained with the appellant, the same was disturbed only in 1962, during the consolidation proceedings; therefore, even if the suit would have been for possession, it was within limitation of twelve years prescribed by the said two Articles. He also argued that even if Article 120 of Limitation Act was to be applied, the suit was within limitation under that residuary Article. The very basis of the whole of the argument is non--existent. The possession of the land in dispute was transferred to the donee in 1940. With this finding of fact, it was very difficult for the learned counsel to urge anything in respect of limitation and, in fact, he did not advance any other argument with regard to the issue on limitation. There being no basis for the contention of the learned counsel in regard to limitation, the same is repelled and I uphold the findings of the learned Courts below on issue No. 2 as well.
8. The question as to the adverse possession really does not arise after the findings on the issues as to gift and limitation. However, the way in which the learned trial Court has approached this issue is not against any substantive or pro--cedural law. The learned trial Court observed that `the donee acquired the ownership of disputed land by adverse possession, for a period extending 22 years continuously and uninterruptedly'. This finding, on Issue No. 4, can be supported on another basis) as well.
Even if there was any technical defect with regard to the gift, which I hold there is none, the fact remains that the respondent obtained the possession of the land in dispute in 1940 and remained in its possession, without any interruption, openly and with due publicity and notoriety. Though it appears that she continued to live as the wife of the appellant, yet the fact remains that she exercised full physical control over the land in dispute. If the appellant's position at the time of the filing of the suit was that be did not originally, deliver the physical, possession of the land, then the possession of the wife will b deemed to be hostile to the interest of the appellant. Therefore all the conditions for the acquisition of ownership through adverse possession are satisfied.
The learned counsel, in this behalf, contended that there was no change in the mode of enjoyment; therefore, there is no physical taking or capturing of the possession from the appellant. I do not agree with this appreciation of the fact of transfer of possession. As already held, the physical possession of the land was taken over by the donee/respondent; and if it is to be seen in the light of the eventuality visualised above, it amounts to capturing the possession. The learned counsel also urged that F the claim of the respondent as to adverse possession does not originate from an act of trespass but is claimed to be derived from a lawful title flowing from gift and, therefore, it will not amount to adverse possession. He has relied on Mst. Ghulam Illahi v. Muhammad Waris Khan (PLD 1955 FC 31). It is correct that their Lordships held that the possession is not to be considered adverse if its origin can be referred to a lawful title whenever that is possible, because a person who claims to have entered into possession as a trespasser will be presumed not to have done so, if at the time he so entered he had some lawful title to possession. I most respectfully submit to this observation; but the same does not help the learned counsel, in the context of the argument in this case. The case of the appellant is that the possession was not delivered to the donee, as a result of the gift; nor did she ever come in physical possession except in 1962, through consolidation operations. It is only in this context, and if the findings by the learned Courts below and affirmed by me on the question of gift are ignored, that the other question as to adverse possession arises; i.e. If according to the appellant there was no completed gift or no gift, then in view of the finding that the respondent did, in fact, take over the physical possession will make it a case of adverse possession; because in that eventuality the respondent would not, as asserted by the appellant, have taken the possession under a lawful title. Therefore, it is only on the assumption of the basis of the case propounded by the appellant himself that the question of adverse possession arises; and in view of the findings of fact on physical possession, Issue No. 4 as to adverse possession is also decided against the appellant.
8. The learned counsel also very vehemently argued that the finding of the learned Courts below, on the question of the effect of the conditional gift in dispute, is erroneous. According to him, the condition of the gift enuring for the benefit of the donee, only for her life or till her remarriage is valid and operative; because, and this is very important, according to the learned counsel, the donee was allowed only the usufruct of the land in dispute and that the corpus of the land did not change the position. Mr. Abbas A.I, the learned counsel for the respondent, with equal vehemence asserted that the gift in dispute was that of corpus and not of usufruct and, therefore, the condition attached to it was void and that the gift will have to be treated as complete without any such condition. Reliance was placed from both the sides on the following:- Sardar Nawazish A.I Khan v. Sardar All Raza Khan PLD 1948 P C 23; Samir Sheikh and others v. Aijan Bewa and others PLD 1956 Dacca 143; Mst. Bibi Alam Taj and others v. Mst. Inayat Begum PLD 1963 Pesh. 199; Mst. Sartaj Fatima v. Muhammad Jawad and others AIR 1931 Oudh 6; Abdul Khaleque Mondal and others v. Bepin Behari Bose and others AIR 1936 Cal. 465; Bai Saroobai v. Hussein Somji and others AIR 1936 Bom. 330 and Achiruddin Ahmed v. Sakina Bewa and another AIR 1946 Cal.
288.
It is unnecessary to examine all the rulings cited above, as the question involved has, by now, been thoroughly discussed and determined in a recent ruling by a Division Bench of this Court reported as Mst. Khan Bibi v. Mst. Safia Begum and others (PLD 1969 Lah. 338). After discussing almost the entire case-law on the point and after referring to the well-known treatise on Muslim fiqh and law, their Lordships came to the conclusion that under Muslim Law, where the corpus of the property is transferred for life time and the conditions are attached thereto, the gift is valid 4G but the conditions are void. However, where the intention of], the maker of the gift is to transfer the usufruct of the property only, then in that case a limited interest is created for a particular time and, therefore, the conditions can be attached to it such as the reversion of the property to the donor after the expiry of the limited period. The details of the gift in dispute in that case are given at pages 343, 361, 362 and 363 of the report. The gist, given by their Lordships, of the conditions attached to the gift is found at page 363 of the report which is as follows:- "A perusal of the above document and especially the portions underlined shows:-
(a) that the donor did not gift the corpus of the house to the donee;
(b) the donee was only provided with a right of residence in the house during her lifetime;
(c) the donee was not given the power to alienate the property;
(d) after the death of the donee the house was to revert to the heirs of the donor;
(e) the repairs etc., of the house were the responsibility of the donor himself;
(f) that the husband of the donee was also to reside with the donee;
(g) that the interests created for donee were only for her lifetime.
The above incidents and the tenor of the deed point out that the transaction through and through was in the nature of ariat and not hiba as explained in the earlier paragraphs of my judgment. The learned Civil Judge erred in assuming that the above deed purported to transfer the corpus of the house. Had that been the case, then of course, the conditions would have been void, but as it is, the transaction is merely an arfat and cannot be enlarged and widened in its scope and effect."
It may be seen from the above quoted observations that the transfer in that case was held to be in the nature of ariat and not hiba, and further that only the usufruct was allowed to be enjoyed by the donee of the property in dispute and not its corpus. After these findings, their Lordships held that the so-called gift in that case was with conditions which were valid and operative. In the present case, the principles elucidated by their Lordships of the Division Bench are fully applicable but the facts being distinguishable, the result is different.
9. The gift was made in 1940 and the parties belong to Sialkot district. The concept of life estate of females is very well known in the Customary Law of the Punjab. The phrase used in the mutation in this case with regard to the estate is " TA HAIN HAYAAT YA TA NIKKAH SAANI ". This is a typical phrase with regard to the limited estate of a female under custom. The general rule of custom for the creation of such an estate is that in the absence of sons and descendants in the male line, the widows take the land on a life interest. This right to hold the estate for life originated in her undoubted right to maintenance. But the origin of this estate as to maintenance, by passage of time and through precedent law, improved into a concept of enjoyment of property other than maintenance alone. A clear demarcation between the maintenance simpliciter and life estate came to be recognised in custom. It is observed "in the Tribal Law in the Punjab by the Roe and Rattigan, as reproduced in the Digest of Customary Law by Sir W. H. Rattigan, 1953 Edn. At page 299 as follows:-- "The tenure of the widow is very different from that of the reversioner both in its nature and in its origin. The widow's life-tenure originated in her right to maintenance, but though originally her right was one only of maintenance which in course of time became a right to the enjoyment of the whole estate, whether it exceeded her needs or not, it is not now disputable that her right is to the whole estate.
That right she derives from her marriage; she is her husband's representative and so far has this principle been carried that in many tribes she represents her husband even in collateral succession per Shah Din, J. In Bhambul Devi v. Narain Singh 39 P R 1915."
"It is, however, too late in the day to say that a widow or a mother holds the land merely in lieu of maintenance. That may, or may not, have been the origin of their right to get the land, but it has been long held that the widow or mother of a sonless proprietor is entitled to a life interest in her husband's estate and not merely to maintenance. It is in extremely few cases in the Punjab and amongst very few tribes or families that a widow takes the estate merely in lieu of maintenance."
From the above, it is apparent that normally whenever a widow takes an estate under the technical condition, i.e. " TA HAIN HAYAAT YA TA NIKKAH SAANI " she takes a life estate in the property and not mere right to maintenance out of the usufruct of the property. The latter mode of devolution, i.e. For the purpose of maintenance, is often described in the Revenue Records with the suffix of " barai guzara " added to the expression " TA HAIN HAYAAT YA TA NIKKAH SAANI ". In the present case, it is an admitted fact that the word `guzara' or any other similar expression indicating maintenance, is not only not used during the mutation proceedings but also is not mentioned throughout the period of 22 years, after which the suit was instituted. In fact, the case of the appellant is not that the land was given to the respondent for her maintenance because he contended that she used to live with him and he used to maintain her as his wife. Therefore, there is no question of the transfer, in this case, being only for the maintenance of the respondent. I have already indicated that a specific piece of land was transferred to the respondent the word `arazi' was mentioned in the mutation and was repeated in the Revenue Records throughout the relevant period. Had the respondent been allowed only the maintenance out of the usufruct of the land, there was no need of transfer of specific piece of land. She could have been allowed a share from the produce of the whole of the land belonging to the appellant.
This is not all. The findings of fact as to the transfer of land are that the respondent took physical possession of the land and managed it herself as an owner. After the gift, the appellant had no connection with the land except for the only fact proved on the file that he used to pay the land revenue on her behalf to the Lambardar.
10. The learned counsel raised some arguments with regard to the relief which could be granted to the appellant by the learned Courts below, in case it would have been held that the gift will enure for the benefit of the respondent, only for her lifetime. It is not necessary to deal with those arguments; because, according to my finding, the gift in favour of the respondent is complete and absolute and the condition being void she has acquired heritable title in the land in dispute.
11. As the appellant has not succeeded on any of the contentions raised in this second appeal, therefore the same is dismissed with costs.