ALI HUSSAIN QAZILBASH, J.--Leave was granted in this case against the judgment of a learned Single Judge of the High Court of Baluchistan, Quetta, dated 28-11-1977, to consider whether Mst.
Niamat Khatoon and Bahadur Khan were related to each other within prohibited degree and as such Mst. Niamat Khatoon could not revoke the gift and whether the Courts have rightly held that since the two were not within the prohibited degree by blood relation, therefore, she could revoke the gift.
2. Mst. Niamat Khatoon widow of Sahib Khan, Bahadur Khan son of Sahib Khan and Mst. Lal Khatoon sister of Sahib Khan were the owners of certain land situate in village Kouda Allahbad, Tehsil Bagh, Kalat Division, in equal shares, as they are the descendants from the same grandfather. After the death of Sahib Khan, his son Bahadur Khan, somewhere in 1968, not only took over the possession of the one-third share of his father Sahib Khan, but also that of his step-mother Mst. Niamat Khatoon. This was resented by Mst. Niamat Khatoon with the result that the present suit was instituted in the Court of Assistant Commissioner, Bagh, on 20-10-1974 claiming possession of her one-third share together with her share in the one-third property of her late husband Sahib Khan.
The suit was contested by Bahadur Khan and the stand taken by him was that Mst. Niamat Khatoon, his step-mother, has gifted the suit property to him and thus under the law she was prohibited to revoke the same. The trial Court after considering the case of the parties decreed the suit in favour of Mst. Niamat Khatoon on 23-6-1975. The appeal filed by Bahadur Khan before the Majlis-e-Shoora, Kalat, and his second appeal in the High Court were dismissed on 8-11-1975 and 28-11-1977.
3. The learned counsel for the appellant has been heard and the judgments of the Courts below gone through. As the case stands, we think that the appeal merits acceptance. Under the provision of section 167(2)(b) of the Mahomedan Law by D.F. Mulls, when the donor and the donee are related within the prohibited degree, a gift made cannot be revoked. This legal proposition has been considered threadbare in two cases, viz., Muhammad Latif v. Muhammad Nawaz PLD 1960 Lahore 130 and Daud Khan v. Aurangzeb PLD 1968 SC 54. In the latter case it has been held: "We have carefully examined the reasons on which the High Court decision is based and agree with the view that a gift in favour of a grandson cannot be retracted. No Quaranic text exists on the point while there are two opposite traditions mentioned in Hedayat at page 486. In this state of the law the learned Judges properly resorted to Qiyas and concluded that as the reason why a gift to a kinsman within the prohibited decree cannot be resumed is that 'the object of the gift is to increase the ties of affinity which is thereby obtained' the term prohibited degree should be construed as otherwise the best part of the relations within the prohibited degree will be excluded from the benefit of irrevocability, a result neither based on reason nor on commonsense. There was also no logic in extending the benefit to a mother-in-law, but withholding it from a mother.
The basis on which the learned Judges have differed with Imam Shafei on the retract ability of a gift in favour of a son or a ward has also considerable merit. As reasoned by them the exception in case of a son appears to be based more on the authority of the father as a natural guardian to deal with the property of his minor son than on the concept of retractability of a gift for a father is responsible for the maintenance of only his minor children and not adults. This view is in conformity with Shia Law that a gift to ones descendants and accepted by them is irrevocable and finds support from the tradition 'when a gift is made to a prohibited relation it must not be resumed', the term prohibited in this context being construed as and not the persons with whom marriage is prohibited."
The above two cases and the one reported in Muhammad Aslam v. Bashir Khan PLD 1975 AJK 42 have been considered by the Courts below but still the suit of Mst. Niamat Khatoon respondent has been decreed on the ground that the parties are not related within the prohibited degree. We have also perused the reasons advanced by the learned Single Judge in para. 12 of his judgment in reaching the above conclusion but would say with respect that the learned Judge did not apply his mind in the case at all. What he did is that he simply rendered the opinion of the Majlis-e-Shoora into English which was in the following words: Relationship between the parties is always decided on the basis of the existing established facts and not on more speculation or on an event which has never happened or taken place. Admittedly Mst. Niamat Khatoon is the widow of Sahib Khan and Bahadur Khan appellant' is his (Sahib Khan's) son from another wife. The mere fact that Bahadur Khan is the step-son of Mst. Niamat Khatoon, under no circumstance, would take him out of the pale of his being her son albeit from another mother. Mst. Niamat Khatoon being the step-mother of Bahadur Khan, has obviously placed her in a prohibited degree and thus under the law the gift once made by her, which is valid otherwise, cannot be revoked. The Courts below have, therefore, misdirected themselves in holding it otherwise.
4. As for the second question for which leave was granted there appears misreading of evidence by the Courts below. As the record stands, there is an overwhelming un-rebutted evidence that Sahib Khan deceased was not only the husband of Mst. Niamat Khatoon but was her first cousin as well. Such being the case the inter se relationship between the parties through blood is fully established. The property inherited by Sahib Khan and his widow Mst. Niamat Khatoon was from a common ancestor, therefore, the gift made by Mst. Niamat Khatoon in favour of Bahadur Khan appellant is irrevocable.
5. In the above circumstances, the appeal is hereby accepted. The judgments and orders of the Assistant Commissioner, Bagh, dated 23-6-1975, Majlis-e-Shoora dated 8-11-1975 and that of the High Court dated 28-11-1977 are set aside and the suit of Mst. Niamat Khatoon is dismissed. There is, however, no order as to costs.