SHAFIUR RAHMAN, J.--Leave to appeal was granted to the plaintiffs successors-in-interest to examine whether the impugned judgment of the High Court, dated 28th of April, 1987 correctly interpreted the law with regard to Gifts to non-heirs where delivery of possession had not in fact taken place, as laid down in Ghulam Hassan and others v. Sarfaraz Khan and others (PLD 1956 SC 309).
2. Amir Khan, the predecessor-in-interest of the appellants wanted to marry his son Muhammad Khan with Mst. Bhag Bhari, the defendant/respondent No. 1. When he approached the father of Mst.
Bhag Bhari, he was told to make a gift of land. At first he was unwilling to do so. However, when he was assured by the father of Mst. Bhag Bhari that Mst. Bhag Bhari would render him good service after becoming his daughter-in-law, he agreed to make a gift. In fact, by a gift deed registered on 9th of June, 1979, he alienated agricultural land measuring in all 61 Kanals 3 Marlas in her favour and also declared in the document the handing over of the possession. The mutation of gift was entered and attested in due course. Mst. Bhag Bhari was married to Muhammad Khan the son of Amir Khan who was already in fact married to one Mst. Zulekha and with Mst. Bhag Bhari it was his second marriage. They lived as husband and wife for about 3-1/2 years when difference arose between them leading to their separation followed by criminal and civil litigation in which the parties got involved. In this background of events, Amir Khan instituted the civil suit on 30th July, 1984 seeking declaration that the gift deed executed by him was illegal and void for the reason that it was got executed from him under undue influence, that he had not handed over the possession to Mst. Bhag Bhari and that in any case he was entitled to revoke the gift as the consideration for which it was made had got frustrated and Mst. Bhag Bhari had not rendered the services nor extended the love and consideration for which the gift was made. Mst. Bhag Bhari had in the meantime transferred the donated property in favour of respondent No. 3/Khan Muhammad-- her own brother-in-law, which alienation was also challenged as without consideration, fictitious, illegal and ineffective. The suit was seriously contested and as many as 9 issues as hereunder were framed:-- "(1) Whether the gift of the suit land dated 9-6-1979 by the plaintiff in favour of defendant No. 1 is illegal, void and liable to be cancelled for the reasons mentioned in paragraph No. 6 of the plaint?
O.P.P.
(2) Whether the plaintiff has validly revoked the gift in question? O.P.P.
(3) Whether Mutation No. 205, dated 19-11-1983 regarding the suit land by defendant No. 1 in favour of defendant No. 3 is fake, collusive, without authority and consideration and ineffective upon the rights of the plaintiff? O.P.P.
(4) Whether the plaintiff is owner in possession of the suit land? O.P.P.
(5) Whether the plaintiff is estopped by his own acts and conduct to file this suit? O.P.D.
(6) Whether defendant No. 3 is bona fide purchaser for value without notice of the suit land? O.P.D.
(7) Whether the suit has been incorrectly valued for the purposes of court-fee and jurisdiction. If so, its effect and correct valuation? O.P.D.
(8) Whether the defendants are entitled to get special costs from the plaintiff under section 35-A, C.P.C.? If so, its extent? O.P.D.
(9) Relief."
3. The main contest in the trial Court centred round Issue No. 1. The trial Court held that though it was not established that the Gift Deed was executed without his will and under undue influence, it found that the gift was never accompanied with delivery of possession in favour of Mst. Bhag Bhari and for that reason it was incomplete, ineffective and liable to be cancelled. The right of the plaintiff to revoke the gift was recognised and enforced, and the decree sought for by the plaintiff was granted.
4. An appeal was taken to the Additional District Judge who on the material issue No. 1 reversed the Finding of the trial Court holding that the gift was in all respects complete. The learned. Additional District Judge concluded as hereunder:-- "This evidence of the plaintiff would show that gift was made by the plaintiff in favour of defendant No. 1 in consideration of her marriage with the son of plaintiff. Moreover, after the marriage of defendant No. 1 with the son of plaintiff she had been living in the house of the plaintiff. The plaintiff was father-in-law of defendant No. 1. She had been living with him and as such in these circumstances even if it was conceded that the plaintiff remained in possession of the land in suit his possession shall be deemed to he for the benefit of the defendant No. 1 who was his daughter- in-law. Apart from that gift could not be revoked by the plaintiff because gift was made as consideration of marriage of the defendant No. 1 with the son of the plaintiff. Moreover, after the marriage of defendant No. 1 with the son of the plaintiff she was related to the plaintiff within the prohibited degree and as such plaintiff could not revoke the gift."
The appeal was accepted. The suit was dismissed setting aside the judgment and decree of the trial Court.
5. A revision petition was thereupon filed by the successors-in-interest of Amir Khan in the High Court and the High Court maintained the judgment of the first appellate Court holding as hereunder:- "In the deed, there is recital that possession of the property which was subject-matter of the gift was delivered to the donee. It was an admission binding on the donor and those claiming under him. Consequently, burden lay on him to prove that no delivery of possession, in fact, had taken place. It is true that mere recital in the deed is insufficient to prove effective transfer of possession, but in the circumstances of the ease, in my opinion, possession of the donated land shall be deemed to have been transferred and the gift cannot be held infirm on this score:"
6. Mr. Bashir Ahmad Ansari, Advocate, the learned counsel for the appellants contended that from the recital in the gift deed as well as from the oral evidence produced at the trial it was fully established that Amir Khan was not prepared to make the gift in consideration of the marriage between his son and Mst. Bhag Bhari. It was primarily and essentially on the additional assurance having given that Mst. Bhag Bhari would render him service in old age and infirmity that he was willing to execute the gift-deed. It was primarily for that reason and none else that the gift-decd was executed. As the possession had not been delivered to the lady after the gift and as she had defaulted in rendering the service in consideration of which the gift was made, Amir Khan could revoke the gift. The learned counsel has heavily relied on the case of Ghulam Hassan to emphasise the importance of the delivery of possession in case like this and the failure on account of it.
7. The learned counsel for the respondent, on the other hand has contended that by all standards the transaction evidenced by registered-deed of gift was in fact `Hiba-bil-Iwaz' and the `iwaz' in the case was the marriage of Mst. Bhag Bhari to a son of the donor. Even if such a consideration was coupled with an undertaking on behalf of the donee to render in future service in old age to the donor, that did not in any manner alter the nature of the transaction or the requirement of the law with regard to delivery of the possession. The `iwaz' was duly discharged in the sense that the marriage did take place and as long as it subsisted for about 3-1/2 years, there was no grievance that Mst. Bhag Bhari had not rendered required services to the donor. When the marriage itself could not be sustained and continued, the failure in rendering the services could not, in any manner, affect either the validity or completeness of the gift, even if as a fact it be taken that the delivery had not taken place, or revive the right of revoking it.
8. The learned counsel for the respondent further contended that in view of fiduciary relationship that existed between the donor and the prospective daughter-in-law/donee, the mere recital of delivery of possession in the registered gift deed made and accepted before the Registrar would be sufficient to establish the fact of delivery of possession. This is so where the husband is the donor and the wife is donee.
9. An examination of the registered deed of gift does establish beyond any shadow of doubt that marriage was one of the considerations for which the gift was being made. In addition, there were anticipated services to be rendered by the prospective daughter-in-law which found mention in the deed of gift. Hiba-bil-iwaz has been defined in paragraph 108 of Mulla's Mahomedan Law, in the following words:-- "168.Hiba-bil-iwaz (,gift with exchange).--(1) A hiba-bil-iwaz, as distinguished from a hiba or simple gift, is a gift for a consideration. It is in reality a sale, and has all the incidents of a contract of sale. Accordingly possession is not required to complete the transfer as it is in the case of a hiba, and an undivided share (mushaa) in property capable of division may be lawfully transferred by it, though this cannot be done in the case of a hiba. Two conditions, however, must concur to make the transaction valid, namely, (1) actual payment of consideration (iwaz) on the part of the donee, and (2) a bona fide intention on the part of the donor to divest himself in praesenti of the property and to confer it upon the donee. The adequacy of consideration is not material; but whatever is amount, it must be actually and bona ride paid. Such a transaction is called the hiba-bil-iwaz of India as distinguished from `true' hiba-bil-iwaz dealt with in the notes below. It was introduced by the Muslim Lawyers of India as a device for effecting a gift of mushaa in property capable of division.-------"
The question whether consideration of marriage can be a valid "iwaz" for the gift of a nature executed by the predecessor-in-interest of the appellants, came up for consideration in Tajunnissa Bibi Ammal v. Rahmat Bibi Ammal (1959) 1 Mad. L.J. 221: 1LR 1959 Mad. 6:30, which finds a reproduction and foundation for decision in the Ismail Bcevi and another v. Sulaikkal Beevi and others (AIR 1967 Madras 250). The facts of that case are reproduced as hereunder:-- "The plaintiff in that case filed the suit to recover possession of the suit properties from the defendant, who was her mother's sister. The defendant's son was married to the plaintiff. Just before the marriage, the defendant effected a settlement by way of gift of the suit properties on the plaintiff, in consideration of the marriage. The documents was executed two days prior to the marriage. Subsequently, the husband abandoned the plaintiff and had taken another wife. The plaintiff, therefore, filed the suit, for recovery of possession of the suit properties, from her mother- in-law. The suit was resisted on the ground that the gift was sham and not intended to be acted upon and that it could not validly convey the properties, as possession of the properties was not given to the plaintiff on the date of the gift. The learned Judge construed the document as a hiba- bil-iwaz, and he extracted the definition of hiba-bil-iwaz from Mullah's Mahomedan Law, 14th Edition at page 155 in section 168. The learned Judge observed that promise to marry had been recognised as a valid consideration, and that could particularly be so when under the Mohamedan law the concept of marriage was only a contract, and that therefore when the plaintiff (in the case cited) agreed to marry the defendant's son, there was sufficient consideration for the defendant to execute a settlement deed. The learned Judge observed-- "Anything which is a valid consideration under the law would be an iwaz, and therefore, would constitute proper consideration for a hiba-bil-iwaz. Applying that test I am of opinion that in the present case the Settlement Deed Exh. B.1 is only a hiba-bil-iwaz, the consideration thereof being the agreement to marry the defendant's son. In such a case even if there had been no delivery of possession, the gift would be valid and the plaintiff would be entitled to maintain the suit for ejectment."
The question was considered in Khuda Bakhsh and others v. Mst. Khudeja Bibi (PLD 1968 Lahore 1(1()1) where one of the considerations was the discharge of dower as well. In the present case it is not a case of dower.
10. It is clear from the deed of gift that main consideration (iwaz) for the gift was the marriage and the anticipated rendering of services on account of such marriage. Marriage did take place within days and for 3-1/2 years the necessary services were rendered. In the circumstances, the iwaz was complete. It cannot be 13 urged that the services alone were the consideration and that the services were to be rendered throughout the life of the donor. It cannot also be urged that power of revocation remained with the donor or that such a gift suffered from any defect of incompleteness due to non-delivery of possession.
11. We additionally find that the relationship of father-in-law in the circumstances of the case was fiduciary and his recital in the deed like that of a husband, in certain circumstances, has to be taken as complete discharge of the responsibility of handing over the possession and altering the character of his continued possession by making it on behalf of and for the benefit of the donee so as to preclude the donor and his successors-in-interest from questioning it.
12. In the circumstances, and for the foregoing reasons, we uphold the judgments of the two Courts and find no merit in this appeal which is dismissed with costs.