ABDUL HAKEEM KHAN, J.---Sar Anjam Khan brought a suit for declaration, that he is owner of 350/381 shares that is to say, 1508 Kanals, 8 Marlas, out of the land comprised in Khatas 1/5, 9, 12, 19 and 16/244 to 264, situated in Char Banda, Mardan, and that
(1) the revenue record showing him to be owner of 35/65 shares is wrong;
(2) the defendant-respondents 1 to 4, namely, Mir Afzal Khan, Azizur Rahman Khan, Muhammad Ayub Khan and Mst, Zubeda Begum have no right in the same; and
(3) consequently, the defendant-appellants 5 and 6, namely, the Deputy Land Commissioner, Mardan, and the Government of West Pakistan (now N. W. F. P. Government) have no powers under the Land Reforms i.e., M. L. R. No. 64, even with respect to a part thereof.
He further prayed for the grant of a permanent injunction against defendant-respondents 5 and 6 restraining them from exercising their powers under Martial Law Regulation No. 64, as respects the aforementioned land.
2. This may here be mentioned, that Sar Anjam Khan con--tends, that the land in suit was given in the year 1923 by Abdur Rahman Khan to Mst. Sardaro (whose solitary Shariat heir he happens to be upon her death in January 1960) as dower on the eve of their marriage. He further asserts, that after the transac--tion, Mst. Sardaro became the owner of 350/381 shares (leaving Abdur Rehman Khan with 31/38: shares), but in the revenue record, Mst. Sardaro's share was erroneously shown to be 35/66. It was because of this error, that when Abdur Rahman Khan died in 1954, most of the land which he had given in dower to Kist. Sardaro was also mutated to the names of defendant- respondents 1 to 4, who were his Shariat heirs besides Mst. Sardaro.
3. Defendant-respondents 1 to 4 (first three are the nephews of Abdur Rahman Khan and the fourth is his second widow), however, asserted that the land in suit was not given in full ownership and that only a life-estate with respect thereto was created in lieu of dower. Subject, of course, to this observation, they conceded that the record should have shown her share as 355/381. Defendant- respondents 5 and 6 also took up identical grounds to resist the suit.
4. Taking into consideration various pleas raised by the parties, the following issues were settled:-
(1) Whether the civil Court has got jurisdiction to entertain the suit for declaration and injunction against defendants 5 and 6?
(2) Whether Mst. Sardaro was the full owner of the land in suit and the plaintiff Sar Anjam Khan is entitled to the relief prayed for?
(3) If Issue No. 2 is not proved, to what shares are the parties entitled according to Shariat?
5. The learned trial Judge, Mr. Zafar All Khan, then Senior Civil Judge, Mardan, has found, that civil Court has jurisdiction, Mst. Sardaro was not the full owner of the disputed land-she was a limited owner entitled to usufruct of the land; and the plaintiff will get through Mst. Sardaro, the senior widow, 1/8 of the entire area, i.e., 1621 Kanals, 19 Marlas, which belonged to Abdur Rahman Khan, so to speak an area of 202 Kanals, 14.7/8 Marlas. On the view of the matter that he took, the learned trial Judge granted a declaratory decree to the plaintiff to the effect, that he was owner of 202 Kanals, 14.7/8 Marlas, and taking into conside--ration the partial success of the parties, he directed them to bear their own costs, vide his judgment and decree dated 28-10-1964,
6. Feeling aggrieved by the aforesaid judgment and decree, Sar Anjam Khan has preferred this First Regular Civil Appeal.
7. Though the parties were at issue on the jurisdiction of the civil Court, the finding of the learned trial Judge that civil Court has jurisdiction has not been seriously questioned and we think, rightly.
Martial Law Regulation No. 64 came into force on 7-2-59. The lands which belonged to Mir Afzal Khan and his brother Azizur Rahman Khan defendant-respondents 1 and 2, respectively) came within its purview. It appears, that what these two defendant-respondents got out of the suit land, they surren--dered the same along with other lands, which were also resumable.
Mst. Sardaro, who was then alive objected, asserting her full ownership on the basis of the dower deed executed by Abdur Rahman Khan in 1923. The Deputy Land Commissioner, Mardan, rejected the petition. There was an appeal by Mst. Sardaro to the Land Commissioner, Peshawar, but with no luck. It was dismissed on 1st October 1959. Still not satisfied, she moved the Chief Land Commissioner on 12th October 1959. As ill-luck would have it, she died on 30th January 1960. The Chief Land Commissioner disposed of the petition by his order dated 17-5-60 (Copy Exh. DW1/5. He, it seems, had no difficulty. Mst. Sardaro who could be given relief, even if she was held to be a life tenant, was dead by that time, and her heirs had not produced any succession certificate. Taking these into consideration, the Chief Land Commissioner ordered It is thus open to her heirs or reversioners to seek such legal remedy as they wish to pursue, in order to obtain title to the area in question.
This revision petition be accordingly filed.
8. Now, the above quotation clearly shows that the Chief Land Commissioner has not given any decision upon the rival contentions, and, therefore, it will be idle to argue, that his deci--sion as reproduced in the quotation, ousted the jurisdiction of the Court by virtue of paragraph 4(6) of Martial Law Regulation No. 64. Bar of jurisdiction created by paragraph 27(2) is also not attracted; for, the order of the Chief Land Commissioner clearly envi--sages a declaration by the civil Court on the question of title raised before him. That a civil Court has jurisdiction to proceed in like circumstance is supported by the observation of the Supreme Court in Mst. Hajiani and others v.
West Pakistan and others (PLD 1966 SC 114). In that case also, the Commission had permitted the female heir to move a civil Court in regard to her inheritance. Their Lord--ships observed: "As has been said above, the power of final decision in respect of every disputed matter is vested in the Commission and in our opinion it is subject to that power of final decision that the action of the Commission permitted the matter to be litigated before a Court should be interpreted and understood.
In our view, if in the instant case, even if the Chief Land A Commissioner had not left the question open for determination by civil Courts, the Court would have had on the authority of Nawab Muhammad Farid Khan v. Muhammad Afzal Khan (1968 3 C M R 262) and Muhammad Khizar Hayat Khan v. Chief Land Commissioner (PLD 1968 Lah. 1145) ample jurisdiction to declare the title of a person who was not compellable under Martial Law Regulation No. 69 to file a declaration. We, therefore, uphold the finding of the learned, Senior Civil Judge that civil Court has jurisdiction.
9. The most crucial question, however, that arises for deter--mination and remains to be decided is: whether Mst. Sardaro was full owner on account of the dower deed of 1923?
10. Before we discuss the legal points that arise in this regard, it will be appropriate to reproduce the dower deed, copies of which have been exhibited on record as P. W. 3/1, P. W. 5/1 D. W. 2/1 1 Kabin Nama I, Abdur Rahman Khan son of Shad Muhammad Khan deceased, caste Khan Khel, Afghan, am resident of village Mardan, District Peshawar. Since my Nikah is to be performed with Mst. Sardaro daughter of Taj Muhammad Khan, resident of Mardan, I, therefore, being in possession of my discretion and sense, execute the present Kabin Nama to the effect that I give to the aforementioned lady from my ownership 1400 Kanals of Shah Nehri land, situate in Nasir Killi, Mahal Char Banda, Tehsil Mardan so long as she lives (TA-HAIN HAYAAT IS KE) in lieu of her dower.
Possession of that has been given today. She herself will pay the land revenue and will herself appropriate the produce (PAIDAWAAR SE KHUD FAIDA UTHAIY GI). However, she will have no right to sell, mortgage, gift or exchange. The Khasra numbers are: 422, 446, 447, 477, 478, 462, 463, 466, 467, 468,716/300 to 315, 454, 455, 449, 456, 457, 460, 461, 475, 476, 418/481, 717/482, 450, 452, 420/481, 451, 453, 457, 444, 445, 465, 443, 458, 470, 473, 474, 441, 440, 469, 471, 472, 464, 739/461 and 470/479 (1400 Kanals from the aforementioned Khasra numbers). In ease the aforementioned lady does not feel happy in the present house, I will construct a separate pacca house for her near my own house, and whatever ornaments have been given in possession of the aforementioned lady, such ornaments shall belong to her. I shall have no concern, whatsoever, with them, and the land which has been given, I guarantee its title. In case, the area is found to be less, I will make up the deficiency in Nasir Killi. Written on 18th December 1927, Signature by Abdur Rahman placed in English. Further, Subedar-Major Khalil Khan, a paternal aunt's son of my wife Bibi Sardaro is present on her behalf. Further--more, if on my death the aforementioned lady gets married else--where, she will be ejected from the aforementioned property.
11. It may be mentioned that judicial opinion on the permis--sibility of life estates under Muslim Law has not been consistent and uniform. The earlier view of different superior Courts was to the effect that a life estate cannot be created by a Muslim, and that the grantee will take an absolute estate.
12. In Nizamuddin Ghulam and others v. Abdul Ghafoor and others ((1889) 13 I L R 264) and their Lordships observed as follows:- "It was next argued that, independently of the wakf, the settlement is valid as a grant by Karimuddin of his estate to his wives and their daughters for their lives, and that, in that view of the case Tahira would have had only a life estate in the property in suit, which on her death would have reverted to Karimuddin's next of kin. It was not, however, shown to us how Karimuddin could legally create such a life estate, or grant the property to his next of kin on the determination of the life estates. In his lifetime he made no grant, for he kept the possession of the property with himself until his death, and on his death, his estate would devolve on his heirs by Muhammadan Law; and, as said in the case of Ranee Khujooroonisa v. Mst. Roushan Jehan L R 3 I A 291 'the policy of the Muhammadan Law appears to be to prevent a testator interfering by will with the course of the devolution of property according to law among his heirs'. The creation by any life estate at all appears quite inconsistent with the Muhammadan Law-See Mst. Humeeda v. Mst. Budlun 17 C W R Civ. Rul. 525. It might be that by consent such an estate might be ---created, but as a general rule, the donee in such a case would take an absolute estate All our masters are agreed that when one has made a gift and stipulated for a condition that is fasid, or invalid, the gift is valid and the condition void'. (Baillie's Mohammadan Law, P. 537). So in the Hedaya, III, p. 3000 it is said 'An amree, or life grant, is nothing but a gift and a condition; and the condition is invalid; but a gift is not rendered null by involving an invalid condition'. We may also quote the case of Claekkeenokutti v. Ahmad I L R 10 Mad. 196, as an authority against the validity of this settlement under which next of kin claim that the property was given to them after the death of the wives and aulad and aflad of the donor. The settlement, therefore, must be rejected from the case altogether. It is not valid as a Wakf and it is not valid as a deed of gift to the donor's wives and daughters."
13. In Amjad Khan v. Ashraf Khan and others (AIR 1925 Oudh 568) Ashworth, A. J. C. After an illuminating and elaborate discussion, observed at page 573 of the report as follows:- "The law, therefore, must be interpreted to mean that the owner of estate may retain what is virtually a life-estate, but he cannot transfer anything more than a mere use. If he purports to transfer some thing more, than the use, namely a use, which is not recoverable during the term for which it is granted, and which can be lent or leased to another or otherwise alienated, he will be held to have transferred not only the use, but also the corpus. A life-estate, therefore, can only, under Muhammadan Law, be created by reservation after the transfer of the corpus. It cannot be created by transfer to another whether the corpus is retained or not by the donor."
The argument, viz., there was nothing in the Hedaya to support the gift of a life-estate, still there was nothing to prevent it, was overruled by his Lordship's observation "I find this passage concerning the amree on pages 308 and 309 to be a clear indication that the gift (Hiba) of a life estate is forbidden in the sense that it will be construed as a gift of an absolute estate."
The further reasoning of his Lordship in support of the obser--vations is also weighty, but we need not reproduce them in the present context. It is true that: When this case was taken to the Privy Council (we refer to AIR 1929 P C 149), their Lordships of the Privy Council agreed with the view of the Oudh High Court that gift to Mst. Waziran was of a life interest of entire property with the power of alienation in respect of one---third of the property, but the judgment itself records that their Lordships of the Privy Council did not on that occasion consider it necessary to express any opinion, as to whether or not, gift of a life-estate is valid under the Muhammadan Law.
14. So far as the contrary view, upholding the validity of a life-estate under the Muslim Law is concerned, the following authorities can be referred to with advantage.
15. In Sartaj Fatima v. Muhammad Jawad and others (AIR 1931 Oudh 6), it has been observed that a gift by one person to another of a Guzara for the lifetime of the latter with a continuance in favour of the male heirs of the donee, could be made without offending any principles of Muhammadan Law.
16. In Rasoolbibi v. Yousaf Ajam Pigerdi (AIR 1933 Bom. 234), the creation of life-estate by a Musalman in favour of a Surni lady was upheld. Rangnekar, J., however, did not subscribe" to this view, and observed that life estate of the daughter under the Muhammadan Law was a grant of absolute estate, and she took the property absolutely.
17. In Bai Sarobbai v. Hussein Somji and others (AIR 1936 Bom. 330), which is a Full Bench ruling, the gift of life-estate by a Muhammadan Sunni Musalman was held to be valid. B. J. Wadia, J., however, dissented, observing: "A gift of the rents and profits of a property does not carry with it a gift of the entire property. A right to enjoy the usufruct of property during the grantee's life can also be conferred, if that is the clear intention of the grantor."
18. In Abdul Khaleque Mondal and others v. Bepin Behari Bose and others (AIR 1936 Cal. 465), it has been held:-- "Life-estate created under the will by a Musalman will remain in force until his death, whether it is valid or invalid under the Muhammadan Law.
19. In Archidurddin Ahmad v. Sakina Bewa and another (AIR 1946 Cal. 288), Chakravarty, J.
Observed:- "There is nothing in the texts of Hanafi law under which a life-estate created directly as a life-estate and not by way of a limitation on an absolute grant is Invalid whether such an estate is created by a deed of gift or a will. Nor is there any sanction in any decision of the Judicial Committee for forbidding such life-estates."
20. Then there is the ruling of the Privy Council in Nawazish Ali Khan v. Ali Raza Khan (AIR 1948 P C 134), which has been considered to be the source material by the superior Courts in the Indo-Pak.
Sub-continent on the power of a Musalman to create a life-estate. In a few words, the ratio decidendi of this ruling is that where there is gift of corpus conditions limiting the grant will not be valid, and there will be an absolute gift. However, where there is a gift of usufruct, it will be permissible for the donor to place restrictions or limitations. We shall be adverting to this ruling in detail at appropriate stage.
21. The aforementioned authority has been relied upon in Mst. Inayat Begum v. Mst. Maryarn Bibi and another (PLD 1953 Pesh. 1), wherein it has been held that there is no substantive or positive rule of the Hanafi School of Muslim Law preventing the creation of a life-interest in property. In a subsequent case, which arose out of that very deed, namely, Mst. Bibi Alam Taj and others v. Mst.
Inayat Begum (PLD 1963 Pesh. 199), their Lordships observed, that Muhammadan Law recognizes Interest of limited duration in the usage of property and thus a person can create a life-interest in his property in favour of a particular individual and his descen--dants. This latter case was taken in appeal to the Supreme Court, vide Civil Appeal No. 20 of 1968. Their Lordships of the Supreme Court held that the impugned document created life-estate. The question, whether life-estate could at all be created by a Musalman, however, does not appear to have been argued before their Lordships.
22. It may be mentioned here, that by and large the entire case-law on the point has been reviewed in an illuminating judgment of the High Court of West Pakistan in Mst. Khan Bibi v. Safia Begum and others (PLD 1969 Lah. 338), and the ratio in the words of Mr. Justice Shamim Hussain Qadri is:- "The consensus of opinion of different authors on Muhammadan Law supports the proposition that where corpus of the property is transferred for life-time and the conditions are attached thereto, the gift is valid but the conditions are void. However, where the intention of the maker of the gift is to transfer the usufruct of the property then in that case a limited interest is created for a particular time and, therefore, conditions can be attached to it such as the reversion of the property to the donor after the expiry of the limited period."
In the aforementioned report a reference to the observations of Karam Elahi Chauhan, J. Also will be no less rewarding. His Lordship after dealing exhaustively with the conceptual differences between the English and Muslim Laws relation to property pointed out the peculiarities of a gift under Muslim Law. In this context his Lordship observed that gift is of two types, namely, "(a) Hiba which is confined only to the transfer of rights of full ownership of the corpus of any property; or (b)
A'ariat which is the transfer of some limited interest in the benefits, produce, profits, usufruct or In the use of the property". His Lordship then proceeds to tabulate the distinguishing features of the two and eventually sums up as follows:-- "'Estate' is a term of art in English law and has a definite meaning in its technical sense. A 'life estate' implies the transfer of a corpus of the property to a certain person with certain limitations as to its use and alienation during his lifetime. In this technical sense of the term a 'life estate' is unknown to Muhammadan Law. As opposed to this, there is a concept of life interests which means the transfer of the usufruct or any other interest in the corpus of a property bestowed on a person for a well- defined period, namely, the lifetime of the donee. The creation of the life-estates is prohibited but not the creation of life-interests or interests for life in the usufruct of the property."
It will be noticed, that as per Karam Elahi Chauhan, J., the deed in the case gave a right of residence to the donee in the two houses and that the gift, therefore, was an a'ariat and not a hiba.
23. The latest ruling in the matter is Farid v. Mst. Nur Bibi (PLD 1970 Lah. 502), decided by M. A.
Zullah, J. This case relates to a gift of land, measuring 52 kanals, 10 marlas Including a kotha thereon, to a wife by the husband on or about the time of marriage, wherein the mutation clearly stipulated, that the estate was (TA-HAIN HAYAAT TA NIKKAH SAANI), In this Lahore case also, the donee contendei" that the gift in dispute was that of corpus and not of usufruct and conditions attached to it were void, while his opponent's case was that the donee was allowed only usufruct of the disputed land, and that the transfer of the corpus of the land did not alter the position. A perusal of the report will show, that Mst. Khan Bibi v. Mst. Safia Begum and others, was distinguished, and the gift was found to be one which was not in the nature of a'ariat. It was observed, that since Mst. Nur Bibi lived with her husband and he used to maintain her, the land was, therefore, not given for maintenance. Furthermore, a specific piece of land was transferred to the respondent, Mst. Nur Bibi, and the word 'arazi' was used in that context throughout in the mutation and was repeated in the revenue records. It was pointed out, that if the respondent had been allowed maintenance out of the usufruct of the land, there was no need of transfer of specific piece of land, and that she could have been allowed a share from the produce of the whole of the land belonging to the appellant. In the result, his Lordship found that the gift was of corpus, and as such, Mst. Nur Bibi took the land as an absolute owner, the conditions that the land was given for life or till remarriage being void.
24. It will be noticed, that in the above-mentioned rulings from Lahore, namely, Khan Bibi v. Safia Begum and Farid v. Mst. Nur Bibi, the dictum of the Privy Council in Nawazish Ali Khan v. Ali Raza Khan, that where there is gift of corpus conditions are void but a limited interest takes effect out of the usufruct, has been followed and that after a careful analysis In each case, the document was classified. The transfer in Mst. Khan Bibi, was found to be a'ariat-a gift of usufruct and in Farid's case it was found to be a Hiba, a gift of corpus. We will also be doing likewise for precedents laid down by the Privy Council remain s binding on us, vide, the weighty pronouncement of the Supreme Court in the State of Pakistan and another v. Mehrajuadin (PLD 1959 SC (Pak.) 147), even though we have got our views, regarding the validity of limited interests under Muslim Law, which we humbly place on the record in the hope, that these might prevail with the Supreme Court whenever such a question is taken before their Lordships with a view to set at rest the conflict of Judicial opinion which, it seems to us is of a fairly long standing and relates to funda--mentals of Muslim Law applicable to an overwhelming majority of our population.
25. But before we place our view we will like to mention that as far as our reading of the Privy Council ruling is concerned, that also is no authority for the validity of life estates under Muslim Law.
A reference to the Privy Council report will show, that the property in that case comprised two estates. One was known as 'the Oudh Estate' and the other as 'the Juliana Estate'. The intestate succession to the former was governed by section 8 of the Oudh Estate Act, 1869 and to the latter, though it was a grant, Muslim Personal Law, was held to be applicable. The validity of two wills which affected the two estates came up for consideration. By the first will, which was by Nawab Nasir Ali Khan, he appointed three successive legatees for their respective lives. The relevant extract from the will reads:-- Now" under section 11 of Act I of 1869, I, by means of this will, do hereby appoint Nawab Fatah All Khan son of my late brother Nawab Nasir Ali Khan, my executor and successor of all this Taluqdari estate with all the rights and interest aforesaid and do hereby authorise the executor that whatever Taluqdari powers over the above-mentioned ilaqa, and over all the properties movable and immovable I the said declarant have my devisee, to wit, Nawab Fatah Ali Khan after my lifetime shall have like myself the very same powers including the power of possession and enjoyment as owner provided he be alive. Similarly after the lifetime of the devisee Nawab Fateh Ali Khan shall, if alive, be his successor. He shall also have the very same powers as have been bestowed on Nawab Fatah Ali Khan by means of this deed of will, After the lifetime of my son Nawab Muhammad Ali Khan, Nawab Hidayat Ali Khan son of the late Sir Nawab Haji Nawazish Ali Khan Saheb shall be his successor provided he be alive. After all these three successors the fit amongst the descendants of the successors shall succeed."
The second will was by Muhammad Ali Khan at a time, when the third legatee Nawab Hidayat Ali Khan under the earlier deed was already dead. This was, so to speak, in continuation of the earlier one evidently under the same terms, and appointed Nawazish Ali Khan appellant before the Privy Council as his successor. It was to decide about the validity of these two wills that in paragraph 19, which is being reproduced in extenso, their Lordships observed as under:- "The Chief Court in appeal took the view that under the wills of Nasir All Khan the estate vested after his death in the three successive tenants for life; that on the exercise of the power of appointment it would pass immediately to the appointee; that there was no period during which the estate would be in abeyance; and that the rights of the heirs of the testator were not affected or prejudiced. In their Lordships opinion this view of the matter introduces into Muslim Law legal terms and conceptions of ownership familiar enough in English law, but wholly alien to Muslim law. In general, Muslim law draws no distinction between real and personal property, and their Lordships know of no authoritative work on Muslim law, whether the Hedaya or Baillie or more modern works, and no decision of this Board which affirms that Muslim law recognises the splitting up of ownership of land into estates, distinguished in point of quality like legal and equitable estates, or in point of duration like estates In fee simple, in tail, for life, or in remainder. What Muslim Law does recognise and insist upon, is the distinction between the corpus of the property itself (ayn) and the usufruct in the property (Manafi). Over the corpus of property the law recognises only absolute dominion, heritable and unrestricted in point of time; and where a gift of the corpus seeks to impose a condition inconsistent with such absolute dominion the condition is rejected as repugnant; but interests limited in point of time, can be created in the usufruct of the property and the dominion over the corpus takes effect subject to any such limited interest.
'If a person bequeath the service of his slave, or the use of his house either for a definite or an indefinite period, such bequest is valid; because as an endowment with usufruct, either gratuitous or for an equivalent, is valid during life, it is consequently so after death; and also, because men have occasion to make bequests of this nature as well as bequests of actual property. So likewise, if a person bequeaths the wages of his slave, or the rent of his house, for a definite or indefinite term, it is valid, for the same reason. In both cases, moreover, it is necessary to consign over the house or the slave, to the legatee, provided they do riot exceed the third of the property, in order that he may enjoy the wages or service of the slave, or the rent or use of the house during the term prescribed, and afterwards restore it to the heirs.' (Hedaya, Vol. 4, p. 527, Chap. 5, entitled 'Of Usufructuary Will)'.
The distinction runs all through the Muslim Law of gifts----gifts of the corpus (hiba), gifts of the usufruct (a'ariyat) and usufructuary bequests. No doubt where the use of a house is given to a man for his life he may, not inaptly, be termed a tenant for life, and the owner of the house, waiting to enjoy it until the termination of the limited interest, may be said, not inaccurately, to possess a vested remainder. But though the same terms may be used In English and Muslim Law, to describe much the same things, the two systems of law are based on quite different conception of ownership. English law recognises ownership of land limited in duration; Muslim law admits only ownership unlimited in duration, but recognises interests of limited duration in the use of property.
26. While it is true, that in paragraph 20 of the report, their Lordships have observed; 'a limited interest takes effect out of the usufruct under any of the schools', a perusal of the subsequent paragraphs will make it clear that the argument, that the person to take under the power of appointment was to take over absolutely prevailed with their Lordships, and they observed that it was `the right one and that the person nominated under the power was to take an absolute interest'. Their Lordships found the will to be inconsistent with the principles of Muslim Law, adding further 'it would interfere with the Muslim Law of succession, and would involve that the heirs took the corpus of the property for a term, not merely of limited, but of uncertain, duration'. Accordingly, the power of appointment contained in the earlier will was held to be invalid under Muslim Law. A reference to paragraphs 24 and 25 of the report will show, that the second document by Muhammad was also not given any effect, and the property in 'The Juliana Estate was held to be of the heirs of Muhammad Ali Khan under his personal law notwithstanding the powers, regarding succession in the two wills. On the view of the matter that they took, their Lordships advised His Majesty:- "That there be a declaration that the power of appointment given by the two wills of Nasir Ali Khan to Mohammad as the survivor of the successors appointed by those wills was invalid both in respect of the Juliana estate and In respect of the Oudh estate; and that the Juliana estate descended on the death of Mohammad to his heirs according to his personal law. That in respect of the Oudh estate there be an order that the appellant deliver up possession to the respondent, but that such order be without prejudice to any claim which the heirs of Mohammad under his personal law other than the respon--dent may choose to make to the Oudh estate."
27. The above analysis of the Privy' Council judgment wits incidentally point out that the observations of their Lordships, regarding limited interest in usufruct may rather be found to be obiter and were not in any case intended to convert the sister institution of a'ariat into a license for creating limited interests in landed property particularly, when such interest was to be for life. Any other view of the matter will not justify the decision of that case against the appellant. This may here be mentioned that the estate created by the will quoted above from page 136 of the report was with respect to Taluqdari estate with all rights and interests and it was further explained by saying `whatever Taluqdari over the above-mentioned Ilaqa and over all the properties movable and immovable, the declarant had including the power of possession and enjoyment shall vest in the executor'.
28. The conceptional distinction between English and Muslim Law in the words of Mr. Justice Karam Elahi Chauhan, and for this we quote from Mst. Khan Bibi v. Safia Begum is:-- ENGLISH LAW The English Law as to rights in property. Are classified by a Division on the basis of immovable and movable (real and personal) property. Rights in land described as "estate in land" do not always imply only absolute ownership but also rights which fall short of it and are limited to the life of the grantee or otherwise limited in respect of time and duration or use. Property in all these various forms are described as "estate". Ownership of land is thus split up into estates distinguished in point of equality (e.g. Into legal and equitable estates) and in point of duration (e.g. Estates in fee simple, in tail, for life, or in remainder).
MUHAMMADAN LAW The Muslim Law does not recognise the splitting up of an ownership of land into estates as under the English Law draws no distinction between real and personal property. What the Muslim Law does recognise and insist upon is the distinction between the corpus of the property itself (ayn) and usufruct in the pro--perty (Manafi). Over the corpus of the property the law recognises only absolute dominion (heritable and unrestricted in point of time) but interests limited in point of time can be created in the usufruct of the property and the dominion over the corpus takes effect subject to any limited interests. This distinction runs all through the Muslim Law of gifts-gifts of the usufruct (a'ariyat) and usufructuary bequests. Limited interests in respect of property are not identical with the incidents of estates under the English Law. Under the Muhammadan Law they are only usufructuary interests (and not rights of ownership of any kind)- Thus, in English law a person having interest in immovable property for limited periods of time is said to be the "owner" of the property during these periods. The usufruct is also a part of the corpus.
On the other hand in Muslim Law, a person can be said to be an owner only if he has full and absolute ownership. Ownership for a limited period is not contemplated at all. If the use or enjoyment of property is granted to a person for life or other limited period such person cannot be said to be an "owner" during that period. The English Law thus recognises ownership of the land limited in duration while Muslim Law admits only ownership unlimited in duration but recognises interest of limited duration in the use of the property.
His Lordship has also tabulated the salient differences between Hiba and A'ariyat and it will facilitate understanding of the point that we propose to make if the table is reproduced:-
29. From the above it will be clear, that A'ariat, which according to their Lordships of the Privy Council, furnishes basis for the recognition of interest of limited duration in Muslim Law, has many peculiarities, which distinguish it from hiba and makes L it an institution by itself.
30. In the words of Hedaya, A'ariat "signifies an investiture with the use of a thing without a return", and Koorokhee and Shafel define it, "simply, a license to use the property of an--other". Further, A'ariat is resumable at pleasure of the licensor, vide page 478 of the Hedaya. Another remarkable feature of A'ariat is that the borrower cannot let out the thing given to him under the license.
Furthermore, if the land has been borrowed for the purpose of building and plantation, the lender is at liberty to resume it (p. 479 of the Hedaya). According to Syed Ameer Ali, the grant of the usufruct for a limited time, without consideration and resumable at will, is called A'ariat (Commodatum)- vide page 2 of his treatise on Muhammadan Law. The learned author at page 624 on the basis of a quotation from Fatawa-i-Alamgiri defines A'ariat as "constituting person, the owner of the usufruct of a property without consideration". This may here be added, that concluding his discussion on A'ariat. Syed Ameer Ali on page 626 ibid observed: The rules relating to the liability of a person who has taken a thing on A'ariat and other matters connected therewith, are minutely laid down in the Fatawa-i-Alamgiri, but it is unneces--sary to go into them here, as the Indian Contract Act i9 applicable to all those questions.
31. For some distinguishing features of A'ariat reference with advantage may also be made to Articles 806, 807 and 825, Chapter III, Book VI of the Majelle, translated by C. R. Tyser-PLD Publication. The Articles read as follows:-
806. The lender can go back from the loan whenever he wishes.
807. If either the lender or borrower dies, the contract for loan for use becomes annulled.
825. When the lender has demanded the thing lent for use, the borrower must immediately return and deliver. And if on his making delay without excuse, the thing lent for use is destroyed, or perishes, or its price is diminished, he becomes responsible.
32. The definition of A'ariat given by D. F. Mulla in Article 170 of his fifteenth edition on the Principles of Muhammadan Law is also to the same effect. According to him:- The grant of a license, resumable at the grantor's option, to take and enjoy the usufruct of thing, is called a'ariat.
The above definition by Mulla has met the approval of B. Z. Kaikaus, J. In Wali Muhammad v. Mst.
Anwar Sultana (PLD 1958 Lah. 198) wherein his Lordship has further observed, that unlike hiba which is revocable in, particular cases, an A'ariat is by its very nature revocable.
33. It will be seen that limited interest or estate created for the life of a donee goes contrary to some basic conceptions of A'ariat. Firstly, the licensor cannot resume, as and when he may like.
Secondly, it may extend beyond the life of a licensor and thus bind his heirs, which act will not meet the approval of the Muslim Law, unless it is not beyond licensor's testamentary powers. It follows that the limited interest or an estate for life, if tested by the standard laid down for A'ariat, shall, never answer the description.
34. In any case, this will not clinch the matter, for, as indicated above, Syed Ameer Ali is of the view with which we entirely agree, that it is no longer necessary to go into the conception of A'ariat inasmuch as the Contract Act is applicable to all such questions.
"A bailment is the delivery of goods by one person to another for some purpose, upon a contract that they shall, when the purpose is accomplished, be returned or otherwise disposed of according to the direction of the person delivering them."
This definition quite evidently excludes the land from being subject of bailment, for, it specifically speaks of "goods". Again, the obligation of the bailee to restore goods has been laid down in section 158 (ibid), and in section 162 (ibid) it has further been laid down, that gratuitous bailment is terminated by the death either of the bailor or bailee. It follows that the law of bailment as well, which according to Syed Ameer Ali corresponds with the Muslim Law Institution of a'ariat, cannot be invoked to validate the limited interest or estate for life.
36. Assuming for the sake of argument, that for its validity, reliance can be placed on gifts inter vivos, as known to the Muslim Law, it might be said, without fear of contradiction, that gift, as respects the future produce from a specified land, will not be valid. In this respect, quotation from Baillie's Digest of Muhammadan Law published by Premier Book House, at 516 should be conclusive:-- "The thing Itself must be in existence at the time of the gift; so that if one should give 'fruit that may be produced by his palm-tree this year, or what is in the womb of this slave, 'or of this sheep, 'or in its under,' the gift is unlawful, though power be given to take possession at the time of production, as of birth or of milking. So also as to 'the butter in milk', 'the oil in sesame', or 'the flour in wheat' with similar powers. The subject of the gift must also have legal value and possession must be taken of it to establish ft in the right of the donee; and if in its nature divisible, it must be divided and distinguished from not to be joined to; or occupied with anything else that is not given. Hence the gift of land without the crop then standing on it, or of a palm-tree in bearing without its fruit, and vice versa, is unlawful. So also of a house or vessel in which there is something belonging to the donor.
This is further supported by Hedaya, wherein at page 484, it is stated:-- A gift of an article implicated in another article is utterly invalid. If a person makes a gift of the flour of sesame which is yet in grain, or of oil of sesame which is not yet expressed from the seeds, such gift is invalid; and if he afterwards grind the wheat into flour, or extract the oil from the sesame seeds, and so deliver them to the donee, still the gift is not thereby rendered valid. The same rule also holds with respect to butter which is yet in milk. The reason of this is that thing, in all these cases, is a nonentity (whence it is that if an usurper of wheat, or of seeds, should either grind the one into flour, or press the other into oil, he then becomes proprietor of them); and as a nonentity cannot be a subject of property, the deeds in question are therefore null, and cannot afterwards be rendered valid otherwise than by being executed, de novo. It is different in the preceding case, because an undefined portion of anything is nevertheless capable of being transferred.
The gift of milk in the udder, or wool upon the back of a goat or grain or trees upon the ground, or of fruit upon trees, is in the nature of the gift of an undefined part of a thing, because in these instances the cause of invalidity is the conjunc--tion of the thing given with what is not given, which is a hair to the seisin, in the same manner as in the case of undivided Again, in Article 162 of the Principles of Muhammadan Law by Mulla', page 142, it is stated that 'a gift cannot be made of anything to be performed in futuro'. It may be further added, that Article 856 of the Majelle by Tyser (p. 133) is also to the same effect. Article 856 reads:-- "It is a condition that the thing given should be existing at the time of the giving."
The above quotation should be conclusive and in this view of law, it is indeed difficult for us to appreciate that gift of future produce from a specified land can at all be made. That this is not something novel and. Peculiar to the Muhammadan Law will be borne out by a reference to section 124 of the Transfer of Property Act, wherein it is laid down:-- "A gift comprising both existing and future property is void as to the latter in this context, it may be mentioned in passing, that in Rindraban Behari v. Oudh Behari and others (AIR 1947 All. 179) a deed transferring the whole income of the property without transferring property itself, was held- to be a gift of future income and as such invalid under section 124 of the Transfer of Property Act.
37. A limited estate or interest in immovables is also contrary to the very conception of the Muslim Law of property) (as also of the Muslim approach to various other matters). While disposing powers have been given to a Muslim owner and he can also dispose of his entire property by a gifty inter vivos, his testamentary powers do not exceed one-third. A life estate may affect more than one third of the donor's property after the latter's death. It is quite understandable that a donor may bind himself for life but there is no power vested in him to bind his heirs by a gift, the op.-ration of which may extend beyond the donor's death. A donor may die earlier than the donee.
Again, it runs through the veins of Muslim Jurisprudence that every transaction should be definite and dearly ascer--tainable. This is why, gifts to unborn persons, gifts in futuro and gift of Musha have been held to be invalid. Rather, in their anxiety to see, that the transactions are fair and just to all the parties concerned, the Muslim Jurists have ordained against profiteering and wagering. It is not permissible to store or withhold commodities particularly grains from the market. Again, not only that the Muslim Jurists hive gone to the extent of disapproving sale of fruit at the time when it is not ripe; there are also some schools which consider even lease, money to be forbidden. So far as the usufructuary mortgages are concerned, the Muslim Law position is too well-known. That the donee may die before the donor and that the land may not yield produce at all or bear produce every year, are events which take away the definitivity which it seems has been considered to be a must by all Muslim Jurists. For the reasons, non-recogni--tion of limited interest or life estate particularly in the landed properties by Muslim Jurists is quite understandable.
38. It, therefore, follows that the validity of limited interest or life estate depended upon the rule of custom, and not Shariat. Custom no longer holds the field, and apart from the statutory provisions, as contained in section 2 of the N. W. F. P. Muslim' Personal Law (Shariat) Application Act, 1935, that the rule of decision in the matter of gifts shall be the Muslim Personal Law where the parties are Muslim, there are also legislative treads contained in (i) the Abolition of Occupancy Tenancy by section 3 of the N. W. F. P. Tenancy Act, 1950; (2) the termination of life estate under the Customary Law by section 3 of the West Pakistan Shariat Application Act, 1962; (3) the termination of wills providing successive legatees upon the death of legator in enjoyment by section 4 of the West Pakistan Shariat Application Act, 1962, and (4) the termination of wakf --al'al aulad in lands by paragraph 10 of the Martial Law Regulation, 1964, which vindicate the Muslim Law stand, regarding limited interest of life estate. It will he seen, that all these enactments witness the legislative intervention to oust the diametrically opposed rule of custom that mauled the, outstand--ing feature of the property rights expounded by the Muslim Jurists.
39. It will not be out paces if a provisions o section 3 of the N: W. F. P, Tenancy Act, 1950, age adverted to with a view to examine the tenancy created by the impugned dower deed in the present case, we refer to Exh. P. W. 2/3. Tenant, according to section 2(v) of the Act, "means a person who holds land under another person, and is or but for a special contract would be, liable to pay rent for that land to that other person." We are not concerned with the non-abstante part of the definition and therefore, we have omitted that part. Now, there can be no two opinions, that if the dower deed (Exh. P. W. 2/3) had not been there, Mst. Sardaro would have been liable to pay rent to Abdur Rahman Khan. The tenancy so created, it seems to us, would fall within the scope of section 8 of the Punjab Tenancy Act, 1887, the fact that it is for life notwithstanding. What section 3 of the N. W. F. P. Tenancy Act, 1950, says is "Subject to the provision of this Act no person whether a tenant shall, after the commencement ref this Act, acquire, have or continue or have a right of occupancy in any land under any enactment, contract decree or order of any Court or officer". The urderlines* have been supplied to show that these provisions have also a direct effect on Exh. P. W.
2/3. On this view of the matter, therefore, and having regard to the fact that Mst. Sardaro did not pay any rent beyond the land revenue and rates and ceases chargeable, she even otherwise became full owner of tire Land in respect of which tenancy had been created without payment of any compensation, vide, section 4(a) of the N. W. F. P. Tenancy Act, 1950.
40. The learned counsel for the appellant has cited the following authorities in support of his contention that a property given in lieu of dower is Hiba-bil-Iwaz, adding that since it has all the incidents of sale, conditions which derogate from absolute ownership are void, transfer itself being nevertheless valid:
(2) Nawab Qasim Ali Khan and another v. Saiyed Ahmed Shah and others 32 I C 516.
(5) Dana meah Choudhry and another v. Gagan Chandra De and others P L. D 1955 Dacca 39.
41. We, however, have a different view arid in support of our conclusion rely on the unequivocal text of the Holy Quran and the works of the undisputed authorities in Muslim Law. The relevant verses of the Holy Quran along with the translation by A. Yusuf Ali in juxtaposition are: (On marriage) their dower Of their own good pleasure; Remit any part of ft to you, Take it and enjoy it With right good cheer. (IV : 4)
(2)O ye who believe: You are forbidden to inherit Women against their will, Nor should ye treat them With harshness, that ye may Take away part of the dower Ye have given them,--except Where they have been guilty Of open lewdness On the contrary live with them On a footing of kindness and equity.
If ye take a dislike to them It may be that ye dislike Through it a great deal of good. (IV : 19)
(3)But if ye decide to take One wife in place of another, Even if ye had given the latter Take not the least bit of it back; Would ye take by slander When ye have gone in Unto each other; and they have Taken from you a solemn covenant? (IV : 21)
Women already married, Except those Whom your right hands possess.
(Prohibitions) against you; Except for these, all others Ye seek (them in marriage)
With gifts from your property, Desiring chastity, not lust.
Seeing that ye derive Benefit from them; give them Their dowers (at least)
Mutually (to vary it), There is no blame on you, (6)
Wed them with the leave Of their owners, and given them, Their owners, according to what Is reasonable, they should be Chaste, not lustful, nor taking Paramours . . (IV: 25)
(7)
On you if he marry them On payment of their dower To them . (L X: 10)
(8) They suckle your (o8' spring), Give them their recompense Together, according to What is just and reasonable.
(LXV: 6)
42. In the first verse, the expression 'Sedaqaat has been used to denote dower. In the fifth, sixth and seventh verses, the word 'Ujur has been used to signify dower, while in the eighth verse, this very word refers payment for sucking an infant. To fully appreciate the meanings of these two words and the word 'Mahr' as also their cognates, a reference to the dictionary appears to be necessary.
We are quoting from Elias Modern Dictionary, Arabic-English, Sixth Edition:--- To give or assign The use of the word 'SADAAT` is neat without significance. Elsewhere in the Holy Quran, this word has been used ay synonymous to 'Zakat'. To the students of law, it conveys 'transfer without consideration with the object of acquiring religious merit', vide, Article 171 of the principles of Muhammadan Law by Mulla, Fifteenth Edition. The word (Ujur) has been translated by Pickthal in the fifth and sixth verses above quoted as `portions', while in the seventh and eighth, he respectively assigns the words, 'dues' and 'payment' to convey its meanings. There is yet another word, which will help us in understanding the true implications of the institutions, and the same is the word (Fareeza) translated as 'duty' by Pickthal and as 'prescribed' by A. Yusuf Ali. This word occurs twice in Verse IV : 24 quoted at Serial No. 5 of the Preceding paragraph.
43. It comes to this that conceptually, the dower is paid by the husband to the wife, firstly, to acquire religious merit, and secondly, to discharge an obligation or duty towards the wife. This is why, in common parlance, we call it 'Haq-e-Mahr'. It, therefore, seems to us, that dower cannot be called Hiba-'bil-Iwaz, without doing violence to the institution. This is a misnomer. That the dower is an obligation for the wife's consent to Nikah is apparent from the fact, that it may become due in certain cases, even without consummation. It is payable even if it has not been specified at the time of Nikah and, further, it is payable to the wife herself. To call an obligation a 'Hiba' is, therefore, travesty of truth. In this we are supported by the following note from the Principles of Muhammadan Law by Mulla Fifteenth Edition, page 243: Under Muhammedan Law dower is an obligation imposed upon the husband as a mark of respect to the wife. Mahmood, J., in Abdul Qadir v. Salima said that it had been compared to the price in a contract of sale because marriage is a civil contract and sale is a typical contract to which Muhammedan jurists are accustomed to refer by way of analogy. If dower were the bride price a post-nuptial agreement to pay dower would be void for want of consideration, but such an agreement is valid and enforceable.
44. What can form the subject-matter of dower will appear from the following quotation of the Muhammadan Law by Syed Ameer Ali, Vol. II, at page 380; Anything over which dominion or the right of Property may be exercised, or anything, which may be reduced into possession, either In proesenti or in futuro, anything, in fact, which comes within the meaning of the word mal, and has a value, may according to the Hanafi doctrines, form the subject of dower. `Anything', says the Fatawa Alamgiri, `that is mat, or property, and has a tangible value, is a valid subject for dower'. Munafa (profits) accruing from land, investments, business, industry, etc. May also form the subject of dower, excepting the man's own service, if he is a free "roan. If he marry, stipulating to render his own services to his wife In lieu of dower, the marriage would be valid, but the woman would be entitled to the customary dower.
To similar effect but more unequivocal are the observations in the Digest of Muhammadan Law by Baillie at page 94, i.e.: --- When something is mentioned as dower which is not in exis--tence at the time, as, for instance, the future produce of certain trees, or of certain land, or the gains of a slave, the assignment is bad, and the woman is entitled to her proper dower. So also when something is mentioned which is not at the time property in all respects, as, for instance, what may be in the wombs of his flocks, or of his female of slave, at the time, the assignment is not valid, and the wife Is entitled to her proper dower.
45. It, therefore, appears to us that the mere right to appropriate produce from a certain land till the life-tune of the wife, cannot be a subject-matter of the dower. This is certainly a contradiction in terms that though some specified land was being given in dower as 'Haq-e-Mahr', yet the wire could only enjoy it till her life-time or remarriage. Rather, to our mind, such inconsistent conditions in their nature smack of wagering which as is well-known, is a taboo in the religion of Islam. We are, therefore, of the opinion, that payment of dower is an obligation under the Nikah and for this very reason, it cannot be qualified with the duration of the marriage. It becomes due In full amount, no sooner the marriage is consummated. If a life-estate or a limited estate could be created, it will, no doubt, be hard upon the wife or her heirs, if she dies soon after the consummation of the marriage, and part pass upon the husband and his heirs, if they are to be kept out of possession for a long time. It will also incidentally go against the principle that dower is an amount specified or determined by Misal. To settle the matter once for all the Holy Quran says: But if ye decide to take One wife in place of another, Even if ye had given the latter Take not the least bi: of it back Would a take it b slander Such taking back of the dower by the husband has been described $s manifest wrong. It comes to this, that whatever property is given in dower, it cannot be resumed. On this view of the matter, therefore, the property given in dower is in the discharge of an obligation of the husband and goes to the transferee absolutely. Such a transfer Is irrevocable, even if there has been no delivery of possession.
46. Be that, as it may, even if the dower deed (Exh. D.W.2/3) in favour of Mst. Sardaro has to be construed in the light of, the Privy Council t dictum in Nawazish Ali Khan v. Ali Raza Khan the position is no as bad as the learned trial Court has found it to be. It will be useful to reproduce the dictum before we compare the Impugned deed with the Privy Council and other comparable cases. Their Lordships of the Privy Council observed:- In dealing with a gift under Muslim law, the first duty of the Court is to construe the gift. If it is a gift of the corpus, then any condition which derogates from absolute dominion over the subject of the gift will be rejected as repugnant, but if upon construction, the gift is held to be one of a limited interest the gift can take effect out o$ the usufruct, leaving the ownership of the corpus unaffected except to the extent to which its enjoyment is postponed for the duration of the limited interest.
47. We have already reproduced the main contents of the will in the Privy Council case somewhere above. Suffice it to say, that the will in that case, gave the powers of possession and enjoyment as owner to the executor for his life in respect of Taluqdari Estate. The will was held to be a gift of corpus and not of a limited interest out of usufruct.
48. In Mst. Khan Bibi v. Mst. Safia Begum the salient features of the gift; per K. E. Chauhan, J. Were
(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 life time;
(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 himself ;
(e) the repairs etc, of the house were the responsibility of, the donor himself;
(f) the husband of the donee was also to reside with the donee; and
(g) the interests created for donee were only for her life time.
The gift of land, TA-HAIN HAYAAT YA NIKKAH SAANI in Farid v. Nur Bibi was distinguished from the one relating to a house in Mst. Khan. Bibi n. Mst. Safia Begum and noting that it was of specific piece of land and there was no occasion for maintenance gift, it was held that gift was of corpus and therefore, Mst. Nur Bibi took it absolutely.
49. It will be seen, that if the dower deed, relied upon by the plaintiff-appellant in the instant case, is compared with the mutation in Farid v. Mst. Nur Bibi the documents in both the cases will be found to be similar in many respects. Firstly, the transactions in both the cases were on the eve of marriage. Secondly, both the documents purported to convey specific piece of land. In the present case, the Khasra numbers were also specified in the deed. Thirdly, in both the cases, the donors manifested their intention that the property will remain with the donees till their lives, or remarriages. Fourthly, in neither of the two cases, there was estrangement between the spouses, when the deeds were executed, rather the donees were being maintained and looked after by the donors. Fifthly, in both the cases, the donees were in physical possession and used to pay land revenue. Remarkable feature in the case before us, however, is that there is a clear stipulation that Mst. Sardaro shall appropriate the produce herself, or so to speak, benefit from that produce herself, though, of course, it has been added, that she will have no right of alienation.
50. In this view, the present case rests on more firm grounds than the one reported in Farid v. Mst.
Nur Bibi. It may be made clear, that when compared the impugned gift has no similarity with the one in Mst. Khan Bibi v. Mst. Sajia Begum. In the latter ease, features noted in (b), (d), (e) and (f) of the preceding paragraph make out the distinction clear. In any case that was a gift as respects a house, and it is well Settled that Muslim jurists have treated the residential interests in a house differently. 'The reason is quite discernible. The right to reside in a Muse does not suffer from that infirmity, which is present in the gift of produce to by from a specified land. So far as the will before their Lordships of the Privy Council is concerned, that itself has more in common with the document before us.
51. For the reasons, we hold that by Exh. P. W. 2/3, corpus of the property passed on to Mst. Sardaro and that the document did not convey mere right to enjoy usufruct. The possession t passed on to Mst. Sardaro and she was assessed to land revenue, The conditions that she will not alienate, and enjoy only till her life or remarriage, are void and therefore of no effect.
52. It may here be mentioned that even though (for the reasons' already given), we do not subscribe to the view that transfer in lieu of dower is Hiba-bil-Iwaz, our conclusion in the matter' is further re-enforced by a Division Bench judgment of the West Pakistan High Court (copy Exh. P. W.
5/2) on the record), the Kabin Nama in which case is quite comparable with the impugned Kabin Nama. The judgment in that case has been adverted to by the learned trial Judge in his judgment under appeal, but we will like to observe, that the distinction which the learned Judge has endeavoured to mike in this behalf is however, fallacious. It will tie scan, that he divides the Kabin Name of the precedent case into two parts, namely, the operative one where by corpus was transferred, and the conditional one which was to take effect only in the case of estrangement between the spouses. A mere reference to the quotation from the Kabin Name in the precedent case will indicate that though there was an instant transfer of title, the lady could only have the possession of the land demised on separation. It rather appears to us that the Kabin Nama in the present case has many more outstanding features, which we have already noticed above, to constitute it to be a disposition of corpus than the Kabin Nama of the precedent case.
53. On the view of the matter that we have taken, we do not feel called upon to discuss in detail Khuda Bakhsh and others v. Mst. Khudeja Bibi (PLD 1968 Lah. 1001). In passing, however, we will like to mention that the ratio of the said ruling is that it draws a line of distinction between the assignment of property to a wife as her dower and the transfer of property to a wife in payment of dower; for, in the former case, it will not be a sale, while, in the latter, it will tantamount to a sale. ' It will be seen, that in the instant case, money equivalent to the dower was not indicated, and that it was assignment of land simpliciter. The present Kabin Nama will not be Hiba-bil-Iwaz, in case the aforementioned authority was to be followed in stricto senso. But even if the Kabin Nama in this case has to be treated as an assignment of property, that will not make much difference; for, as in the precedent case, it has been acted upon since long. The principles of general law relating to transfer of property will stand attracted. In the precedent case, in similar circumstances, the property was held to have passed on to the wife absolutely.
54. The argument of the learned Advocate. General, that the defendant-respondents 5 and 6 were neither necessary nor proper parties is untenable; for, no such objection was taken during trial, and it is now too late in the day to raise such a plea. Rather, when we see the record, it appears to us, that defendant---respondent 5 had in fact raised a contention, that the West Pakistan Land Commission was a necessary party.
55. We will further like to bring on record, that defendant---respondents 1 to 4 do not contest the suit. This conduct on their part will not clinch the matter, so far, as the Chief Land Commis--sioner is concerned, but it certainly re-enforces our conclusion, that corpus of the land in suit and not the mere usufruct was conveyed to the lady as far back as 1923 in lieu of her flower.
56. Mian Muhammad Younas Shah, learned counsel interjected on behalf of the tenants during the course of arguments and contended, that since the tenants of the land in suit expected allotment of the land to there on its resumption they were interested parties. He, however, conceded that if this Court was of the view, that corpus of the land has been conveyed, the plaintiff was entitled to the declaration prayed for, and his clients will not get anything in that case. Even if Mian Muhammad Younas Shah had not taken such a lukewarm stand, we would not have considered it desirable to hear him in detail; for, no relief has been sought against his clients.
57. As far as the right of Sar Anjam Khan plaintiff to succeed as a sole heir of Mst. Sardaro is Concerned; will only refer to the mutations (Exh. P. W. 4/2 and Exh. P. W. 5/3i in addition to the admission of defendant-respondents 1 to 4, --regarding the claimant's suit. There la nothing oil tire record to show, that there is any other heir of Mst. Sardaro, excepting Sar Anjam Khan plaintiff.
58. The upshot of the whole discussion is that setting aside the judgment of the learned Senior Civil Judge, we accept the appeal and grant the plaintiff-appellant the declaration prayed, that he Is entitled to 350/381 share of the suit land in the area of Char Banda, that the revenue entries showing his shares as 35/66 are wrong, and that defendant-respondents 1 to 4 have nothing to do with the suit land. We, however, decline to issue permanent injunction against defendant- respondents 5 and 6; for, there is no material on the record to show, that the large chunk of the land being decreed, if added together with what the plaintiff might already have, will not attract the provisions of Martial Law Regulation No. 64.
59. In view of the peculiar circumstances of the case, we direct the parties to bear their sown costs throughout.
S. No.Hiba 1The donor must be a person who has attained majority.It is not necessary that he should have attained majority.
2The subject of the hiba must be the ownership of some property (Mal) (corpus).It is a transfer of use or usufruct (and not ownership). Muslim law recognises transfer of an interest for life in certainproperty, but not the transfer of the corpus (ownership) for life.
3A hiba must not be conditional or limited in time. Conditions if attached would be void and the hiba would be valid.It may be subject to conditions limiting the duration or use. Here conditions are valid and interest of the donee cannot be enlarged, into absolute ownership.
4It must be immediate and not contingent or future.The use or usufruct may relate to a future time. Produce (Manafi) refers to rights which accrue from day-to-day in future. Such produce or use of a thing becomes property particle by particle as it is brought into being- see Hedaya, page 478.
5Rights under hiba are transferable and heritable.Rights are transferable and heritable (in absence of an express provision).
6 It is recoverable at the will of the donor.
7The doctrine of Musha applies. The doctrine of Musha does not apply.
8Acceptance is necessary to complete a hiba. A hiba may be made to any person(including a juristic person who is in existence and who is capable of holding property) or to a child to him in the womb who is born within six months of the date of hiba.An a'ariat is not a condition. An a'ariat may be made to an unborn person provided that he is in existence when the interest is opened out to him.