' Dispute, in this Revision Petition, pertains to agricultural land measuring 200 Kanals in Square No, 27, Killa Nos. 1, 10, 11, 20, 21, Khewat Nos. 61/14, 62/14, 68/14, 64, Khatoni Nos. 157, 158, 159, 160, 161, 162, 163, 164, 184, 165, Square No, 28, Killa Nos. 2, 3, 8, 9, 13, 18, 23, 24, 1, 10, 11, 12, 19, 20, 21 and 22, situated in area of Chak No, 364/J.B, Tehsil Gojra, District Toba Tek Singh. It shall be hereinafter referred to as "suit land", "property in dispute" or "land".
2. The circumstances, briefly stated, leading to this petition, are: That Jamal Din/the predecessor- in-interest of the petitioners was the owner of "suit land" (completely described in the plaint). He had three wives, namely Mst. Fateh Begum, Sardar Begum and Mst. Karam Noor. From Mst. Fateh Begum, he had one son Abdul Aziz while from Mst. Sardar Begum, he had three issues, namely Fazal-e-Hussain, Kaniz Fatima and Mst. Aziz Fatima. Mst. Karam Noor had no issue. It was on 25-6- 1948 when Jamal Din appeared before Patwari and stated that he had donated property in dispute to his wife Mst. Karam Noor for life and had delivered its possession to her. The Patwari recorded his statement and submitted necessary papers to Revenue Officer for attestation of mutation on 4-7- 1949. The aforesaid Jamal Din appeared before Revenue Officer and again stated what he had reported to Patwari. He made gift in following words:- {{URDU TEXT}} ' On this statement, the Mutation No, 34 was attested by the Revenue Officer on 15-3-1949. Mst.
Karam Noor died on 24-4-1985, and Mutation of inheritance, with respect to suit land, was attested on 24-6-1986 by which "land" to the extent of 7/8th share was mutated in favour of the petitioners and the remaining 1/8th was recorded in the name of respondents. Against this order, respondents preferred an appeal which was accepted by the Collector and the case was remanded to Revenue Officer for attestation of Mutation afresh. Pursuant to it, Mutation No, 674 was attested on 15-1-1987, whereby the suit land was mutated wholly in the name of respondents as legal heirs of Mst. Karam Noor. Against this order, petitioners preferred an appeal but without any success.
3. It was in this factual background that petitioners brought a suit for seeking declaration to the effect that transaction of gift embodied in Mutation No, 34 dated 15-3-1949 was for life and was to enure till death of Mst. Karam Noor; that after her demise, the suit land had to revert to the original owner and was to devolve upon his legal heirs under the Muslim Law of Inheritance. This suit was contested. On the pleas of the parties, as many as 10 issues were framed which are not necessary to be recapitulated as learned counsel had advanced their arguments on Issues Nos. 6 and 9. Both the parties led oral as well as documentary evidence in support of their respective pleas. Upon the consideration of the evidence, so adduced, by parties, the learned Trial Court came to the conclusion that the gift of suit land incorporated in Mutation No,34 was complete in all respects and condition of life interest attached to it, was void and did not detract its legal efficacy. On this conclusion, the learned Trial Judge dismissed the suit on 21-5-1989. On appeal, the learned appellate Court came to the same conclusion. Hence this Revision Petition.
4. Learned counsel for the petitioners relied upon Nawazish All Khan v. All Raza Khan (AIR 1948 PC 134) to contend that Jamal Din had donated the usufruct of suit land to Mst. Karam Noor for her maintenance till her life and not the corpus of the property in dispute. On the strength of this assertion, it was vehemently submitted that on the demise of Mst. Karam Noor, the gift of usufruct of land had come to an end and the property, for the purpose of inheritance, reverted to Jamal Din for its devolution upon his legal heirs. Rana Ijaz Amed Khan and Rana Shafqat Mehmood, Advocates, appearing on behalf of respondents, with equal vehemence relied upon para. No, 164 of Mahomedan Law by D.F. Mulla, to stress that the condition of life interest contained in Mutation No, 34 was void and gift of suit land in favour of Mst. Karam Noor was valid. No other point was argued.
5. From the above narration of facts, circumstances of the case and arguments advanced by learned counsel for the parties, the question emerging for consideration is: "Whether Jamal Din, original owner of 'the property in dispute' had donated its usufruct to Mst.
Karam Noor for life term and whether on the demise of Mst. Karam Noor, the land reverted to Jamal Din for devolution to his legal heirs under the Muslim Law of Inheritance?"
' The question for consideration is free from difficulty and is to be answered within the parameters of applicable laws of Muslim Jurisprudence. It is common ground between the parties that there is no clear text on the subject in Holy Qur'an. The various schools have evolved their views in the light of the various precepts of Holy Prophet (May peace be upon him). Ameer Ali, in his celebrated treatise on Mahomedan Law, states: "Under the Hanafi Law when it is clear that the intention is to make to A a gift of the corpus of a thing, and it is conditioned that he should take a limited interest in it or take it only for his life the condition would be void, and the gift would take effect absolutely. Similarly, if a man were to give a piece' of land to another on the condition that he should give to him in perpetuity the whole produce of the land, the condition would be that, for, in these cases, the condition defeats the object of the gift, in other words, although it purports to transfer the property to the donee, in one case it cuts down his interest, and in the other burdens him with a perpetual trust."
' He further goes on to say: "Under the Hanafi Law, a life-grant or `umra, if made in terms which imply an absolute gift, takes effect as a hiba, the condition limiting the gift being held void. A gift to A for life and remainder to B takes effect as an absolute gift to A,-to use an English expression gives him an estate in fee."
' The same subject has been dealt with by D.F. Mulla in his book on Mahomedan Law in section 164 which reads as follows: "164. Gift with a condition.--When a gift is made subject to a condition which derogates from the completeness of the grant, the condition is void, and the gift will take effect as if no conditions were attached to it."
' This question came up for consideration before Privy Council as back as in 1867 in Nawab Amjad Ali Khan's case (1867) II Moo. LA. 517). In this case, the father of appellant Nawab Amjad Ali Khan, some years before his death, transferred a considerable number of Government's Promissory Notes in the name of his son but the income of Note was all along remitted to the father under the direction of Nawab Amjad Ali Khan. The father, thereafter, conveyed to his son for nominal consideration certain landed property reserving to himself only to use of the same during his own life. On the death of father, one of his daughters, came to the Court and laid a claim with regard to Promissory Notes. Dealing with the question noted above, his Lordships of the Privy Council said as follows:-- "The first in order of these matters involves an important point of Mahomedan Law relating to gifts inter vivos... Before the validity of this gift, as one inter vivos is determined, it must first be considered by their Lordships what the real nature of the transfer was. The legal title in the Promissory Notes was undoubtedly in the appellant in his father's lifetime, by virtue of an act of the father. But though the transfer of a legal title will satisfy that provision of the Mahomedan Law which relates to the point of seisin, in its legal and technical sense, yet that alone will not suffice where no intention exists, to transfer the beneficial ownership, either present or future. The facts relating to the gift have been most carefully investigated by Mr. Fraser, the Civil Judge.. Mr. Fraser's observations as to the mode of dealing amongst natives living amongst themselves as a family, in a state of family union, and dealing in this state with the proceeds of property standing in the names of separate members of the family, to whom it has been transferred by the parent and head of the family and to the deference to his wishes and arrangements, and acquiescence in them commonly exhibited, are forcible arguments to exclude the notion of fraudulent concealment of design in a transaction circumstanced as the present. They strengthen the probability of an intended transfer of property in the lifetime of the donor, with a reservation of the use or proceeds of the money transferred during the lifetime of the donor only.
' It remains to be considered whether a real transfer of property by a donor in his lifetime under the Mahomedan Law, reserving not the dominion over the corpus of the property, nor any share of dominion over the corpus, but simply stipulating for and obtaining the right to the recurring produce during his lifetime is an incomplete gift by the Mahomedan Law. The text of the Hedaya seems to include the very proposition and to negative it. The thing to be returned is not identical but something different, see Hedaya, 'Gifts', Vol. III, Book XXX, p.294, where the objection being raised that a participation of property in the thing given invalidates a gift, the answer is, 'The donor is subjected to a participation in a thing which is not the subject of his grant, namely, the use (of the whole indivisible article) for his gift related to the substance of the article, not to the use of it.' Again, if the agreement for the reservation of the interest to the father for his life be treated as a repugnant condition, repugnant to the whole enjoyment by the donee, here the Mahomedan Law defeats not the grant but the condition; Hedaya, 'Gifts', Vol. III, Book XXX, p.
307. But as this arrangement between the father and the son is founded on a valid consideration, the son's undertaking is valid and could be enforced against him in the Courts of India as an agreement raising a trust and constituting a valid obligation to make a return of the proceeds during the time stipulated. The contention of the parties therefore is not found to violate any provision of the Hedaya, and the transfer is complete."
6. The view taken by Privy Council was approved by this Court in Mst. Khan Bibi v. Safia Begum (PLD 1969 Lah. 338). His Lordship Justice Karam Elahi Chohan (as he then was) with unprecedented clarity of mind and with unfathomable legal grasp, explained the concepts of properties in English Law and Mahomedan Law and the various species of gift. It will be highly useful to reproduce paras.
Nos. 6 and 7 of his judgment: "Definition and various concepts of gifts:
6. Gift under Mahomedan Law is a transfer of property or rights by one person to another and it may be of two types from the point of view of its subject-matter, namely, (a) hiba which is confined only to the transfer of rights of full ownership of the corpus of any property, or (b) ariat, which is the transfer of some limited interest in the benefits, produce, profits, usufruct or in the use of the property (for example of right to reside in a' house for a limited period while retaining the ownership of the corpus or a right to fish in a stream, the right to take the produce of a garden, the recurring income of partnership or dividends on shares or interest on Government loan or stock).
Some of these related legal concepts have some technical names as well as for example sukna is a right to reside in a house for life, ruqba is a right to the usufruct for a fixed period and Umra is a life grant of the use or usufruct.
' The distinction between Hiba and Ariat is very significant and runs throughout the Muslim Law of Gifts. If this distinction is kept in view, there will be no difficulty in solving the relevant questions which might arise in that behalf. The salient points of difference between Hiba and Ariat are mentioned in the form of a table below:-- {{TABLE}} S. No, Hiba Ariat
(1) The donor must be a person who has attained majority.
(2) The subject of the hiba must be the ownership of some property (Mal) (corpus)
A hiba must not be conditional or limited in time. Conditions if attached would be void and the hiba would be valid. It is not necessary that he should have attained majority. It is a transfer of use of usufruct (and not ownership) Muslim law recognises transfer of an interest for life in certain property, but not the transfer the corpus (ownership) for life. 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.
(4) It must be immediate and not contingent or future.
(5) Rights under a Hiba are transferable and heritable.
(6) A hiba is not revocable in some cases.
' 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.
' Rights are transferable and heritable (in the absence of an express provision).
' It is revocable at the will of the donor.
' The doctrine of Musha does not apply.
' Acceptance is not condition.
' An ariat may be to an unborn person provided that he is in existence when the interest is opened out to him.
(7) The doctrine of Musha applies.
(8) Acceptance is necessary to complete a Hiba.
(9) 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 in the womb who is born within six months of the date of Hiba. {{TABLE}} ' The above discussion will show that in considering the nature of a transaction the English word 'gift' is generic and must not be confused with the technical term of Islamic Law Hiba and Ariat, according to which alone a transaction in a given case should be scrutinized.
Life estates and life interest.
7. '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 Mahomedan Law. As opposed to this, there is a concept of 'life interests' which means to 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 interest or interests for life in the usufruct of the property. Life interests may be created (a) by family wakfs (wakfs Alal-Awlad); (b) by wills (wasiyyat bi'l manafi); (c) by the rule in Nawab Umjad Ally Khan's case quoted earlier; (d) by the law of Gift, as explained in Amjad Khan v. Ashraf Khan and (e) Sardar Nawazish Ali Khan's case and (f) by Family Settlements (tawrith). It is not my intention to dilate upon the methods hereinbefore mentioned or the incidents of all these transactions and I have their discussion for some appropriate case which might arise under any of those heads. For facility of reference, however, I may state that Asaf AA. Fyazee in his book 'Outlines of Mahomedan Law", Third Edition 1964, has dealt with all these concepts in Article 46 at pages 234 to 256 and has opined that limited ownership may be created in Family Settlements which are more of the nature of a contract and are more of the nature of a contract and are transactions for considerations, rather than a `Hiba'."
' The view taken in Mst. Khan Bibi's case (supra) was followed by his Lordship Justice Aftab Hussain in Fateh Muhammad v. Nathu (1982 CLC 2082). He however, not only followed the view taken in Mst.
Khan Bibi's case (supra) but embellished his decision with his further research. On his masterly analysis, he said:-- "It would thus appear that each case has to be decided on its own merits and it is the duty of the Court to discover the intention of the donor on the language of the gift whether it was gift of corpus or merely of usufruct. In Mst. Inayat Begum v. Mst. Maryam Bibi (supra) the property was gifted for life but it was further added that the donee would have no right to transfer it during his lifetime and it would revert after her death to the donor or his heirs. In the present case, the donor had made a gift of property in favour of his sister's son for life that after his death the property would revert to him or his children. The donee will not be entitled to transfer, or sell or mortgage this property. This appears to be a case similar to the Peshawar case. I am of the view that if the gift had been only subject to right of reversion without any additional condition in accordance with the uniformity of view about Mahommedan Law it would have amounted to an absolute gift and the condition of reversion would be a nullity. But in the present case the intention of the donor appears to be that he did not wish to divest himself or his children of the ownership of the property but wanted to confer only a right of mesne profits of the property on the donee during his lifetime. It is for this reason that he had imposed a condition that the donee would have no right to transfer the property in any manner whatsoever. This appears to be a case of the gift of usufruct only and not corpus."
' The view taken in above case, was followed in Farid v. Mst. Nur Bibi (PLD 1970 Lah. 502), Kazim v Muhammad Iqbal (PLD 1987 Pesh. 152) and Mst. Kaneez Bibi v. Sher Muhammad (PLD 1991 SC 466).
7. The ratio deducible from the foregoing discussion is that a gift/Hiba means, the donation of one thing from donor to donee without an exchange. It means that it is a transfer of property without consideration. The gift may be of two types, firstly hiba, pertaining to corpus of the property and secondly, Hiba, may be a transfer of Ariat, which is the transfer of some limited interest and a benefit/usufruct of the donated property. This may be for a limited time. When the gift pertains to the corpus of property and it has all the three elements, i,e, declaration, acceptance and .Delivery of possession, any condition attached to gift, is void, and gift is valid; that the Hanafi School of Jurisprudence does not recognize the creation of life-grants and life-interests.
8. Applying these principles to the facts and circumstances of this case, it is quite clear that Jamal Din made transfer of corpus of property in dispute to Mst. Karam Noor. The perusal of his statement made to Patwari on 25-6-1948, clearly indicates that he delivered the possession of the property in dispute to Mst. Karam Noor. This was not the end of the things. He did appear before the Revenue Officer and reiterated his statement which he had made to Patwari. He, thereon, stated in an unequivocal, explicit terms that he had delivered the possession of the property in dispute to Mst.
Karam Noor. It is on record that the suit land was subjected to consolidation and property in dispute was allocated to respondents. None of the petitioners raised any objection before Consolidation Authorities. Furthermore, Muhammad Ashraf, one of the respondents, appeared as witness and clearly stated that the possession of the property in dispute was given to Mst. Karam Noor. In cross-examination, he stated that he was married in 1948; that the suit land was given to Mst. Karam Noor in the year 1949 and was to ensure till her re-marriage. From the above material, it is quite clear that Jamal Din had made the gift of the corpus of property in dispute and not gifted its usufruct. On the above analysis, it is very clear that the gift was valid and condition embodied in Mutation was null and void. In result, I have no hesitation in saying that decisions of two Courts below are eminently correct. These neither suffer from any jurisdictional nor legal defect calling for interference in revisional jurisdiction of this Court.
9. For the reasons stated above, this Revision Petition is found to be wholly devoid of merit and is accordingly dismissed. There shall be no order as to cost.