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Regular Second Appeal No. 869 of 1968, decided on 3rd December 1968.

Muhammadan Law Gift--‑Hiba‑bil‑ewaz Consideration need not be money only Promise to marry, a valid consideration; Hiba‑bil‑ewaz in contemplation of marriage‑Valid and irrevocable on solemnization of marriage‑By performance of marriage donor obtains "a return for his gift"‑Such consideration not subject to further condition that donor and donee will continue to live as man and wife‑Contract Act (IX of 1872), S. 2(d).

Hiba‑bil‑ewaz, in essence, is a gift for a consideration and consideration for the gift may assume variety of forms ranging from monetary consideration to consortship. It is equally well established principle, that marriage under Muslim Law is essentially in the nature of a civil contract. According to section 2(d) of the Contract Act, 1872, promise to do something or to abstain from doing something in future is included in the definition of "consideration for the promise". In other words the passing of the consideration by the promisor and doing or abstinence from doing of the return act by the promisee need not be reciprocal. Accordingly, a gift in consideration for the proposed marriage will be perfectly valid and would become irrevocable on solemnization of marriage. With the performance of marriage, the donor "obtains a return for his gift", which is not subject to any further condi tion that the donor and donee will continue to live as man and wife.

"Hedaya" by Charles Hamilton, 1963 Edn., p. 486 ref.

Mst. Bibi Kalsoom v. Mst. Bibi Amir‑un‑Nisa (1863) 1 Hyde. 150; Mst. Tajub‑un‑Nisa Bibi v. Mst. Rehmat Bibi (1959) 1 M L J 221; Mohammad Esuph Ravutan v. Pattamasa Ammal I L R 23 Mad. 70 and Khuda Bakhsh etc. v. Mst. Khudeja Bibi P L D 1968 Lah. 1001 rel.

Mian Muhammad Shafa for Appellants.

This is defendant's second appeal against the judgment of the learned Addl. District Judge dated 19‑10‑1968, affirming that of the Admn. Civil Judge, Jhang, granting a preliminary decree for the possession by partition of one‑half of the house No. 308, Mohallah Tahlianwallah, Jhang Saddar, to the plaintiff, respondent herein.

2. The facts briefly are these. Asghar Ali alias Zafar Alam, appellant No. 1, is married to Mst. Ghulam Sakina, appellant No. 2. But she did not bear him any child, and with her consent, he took Mst. Nasim Akhtar respondent as his second wife their marriage being solemnized on 2‑4‑1962. Four days prior to their marriage, that is to say, on 28‑3‑1962, Asghar Ali, by means of a registered deed gifted one‑half of his residential house described above in favour of Mst. Nasim Akhtar and the other half in favour of his first wife, Mst. Ghulam Sakina. On the basis of the gift of one‑half of the house in her favour, Mst. Nasim Akhtar on 4‑4‑1967 instituted a suit for its possession by means of partition impleading Asghar Ali and his first wife as defendants on the allegation, that after her (the plaintiff's) marriage, she lived with her husband for some months in the suit house; when their relations became strained and she was turned out of the house.

3. The suit was resisted by the defendants on the plea that the gift of one‑half of the house in the plaintiff's favour was not followed by delivery of possession and therefore it remained inchoate; that in any case the gift was hit by the doctrine of Musha and, therefore, the gift of half of the house was ineffec tive. It appears that Mst. Ghulam Sakina has since reconveyed her half share in the house in favour of her husband which the latter considers as if he has revoked the same in his own right and that, therefore, he could exercise the same right as the donor as against the plaintiff.

4. Both the Courts below found it as a fact that after her marriage with Asghar Ali, Mst. Nasim Akhtar lived with him in the house in dispute for some months and, therefore, the require ment of law with regard to the delivery of possession to complete the gift was amply satisfied. In this behalf, evidence produced by Asghar Ali to the effect that after his marriage with Mst. Nasim Akhtar, he took up residence in the house of his brother and not in the house in dispute was disbelieved by both the Courts below. Both the Courts further hold that the gift of one- half of the house in dispute was essentially in the nature of Hiba‑bil‑ewaz which partakes of the character of a sale and not as Hiba simpliciter under Muslim Law. Therefore, the require ment of delivery of possession to complete the gift was not essential requisite in this case, nor would the doctrine of Musha will be applicable to it. Hence this appeal by the defendants.

5. Learned counsel for the appellants argued that the gift of one‑half of the house in favour of Mst. Nasim Akhtar was, made four days prior to her marriage with Asghar Ali and, therefore, it could not be treated as Hiba‑bil-ewaz because till then the former was a stranger to the donor and there was no dower due by him to her. Accordingly it was urged that on 28‑3‑1962, the gift of one‑half of the house to the respondent must be deemed to be a gift to a stranger and as such was revocable by the donor under the principle of Muslim Law. For the later part of his argument, learned counsel relied on the following statement at page 486 of the Hedaya by Charles Hamilton, 1963 Edition, which for the material purpose reads:--

"If a husband makes a gift of any thing to his wife.

it cannot be retracted, because the object of the gift is an improvement of affection; . . and as the object is obtained, the gift cannot be retracted. This object, however, is to be regarded only during the existent period of the contract; insomuch that if a person give something to a strange woman, and afterwards marry her, he may retract the gift; . . . . . .

No procedent or authority is referred to by the learned compiler in support of the latter part of the above statement. However, the rationale for the retraction of gift to a stranger is stated earlier in the same Chapter in the following words at pages 485‑86:‑

" A donor preserves a right to his gift, so long as he does not obtain a return for it'. Secondly, the object of a gift to a stranger is a return: for it is a custom to send presents to a person of high rank that he may protect the donor, to a person of interior rank that he donor may obtain his services; and to it person of equal rank that he may obtain ad equivalent; and such being the case, it follows that the donor has a power of annulment, so long as the object of the deed is not answered since a gift is capable of annulment."

It would thus be seen, that for the correct appreciation of the relevant principle, the passage relied upon by the learned counsel must be read in context of what preceded it in the same Chapter. The essential principle seems to be that a gift to a stranger, is revocable so long the donor does not receive "a return for it". But in the instant case, which the solemnization of marriage between the plaintiff and Asghar Ali, the object of the gift was fulfilled, even it be taken as a gift to a stranger, ab initio.

6. Be that as it may, the principle stated in the second part of the statement relied upon by learned counsel for the appellant is in conflict with a long string of judicial authorities. It was held in Mst. Bib Kalsoom v. Mst. Bibi Amir‑un‑Nisa ((1983) 1 Hyd. 150) that a Hiba‑bil‑ewaz or deed of gift in contemplation of marriage is not a revocable instrument. It was held in that case that the instrument was essentially in the nature of settlement which become irrevocable after the performance of marriage. Indeed marriage is the consideration for the making of gift. In a recent Madras case m Mst. Tajub‑un‑Nisa Bibi v. Mst. Rehmat Bibi ((1959) 1 M L J 221) it was held That the consideration for Hiba‑bil‑ewaz need not be money only. Anything which is valid consideration under the law would be an ewaz or return and, therefore, would constitute proper consideration for Hiba‑bil‑ewaz. It was also held that a promise to marry is a valid consideration. In that case, a gift of land made in contemplation of marriage, which actually came of but lasted only for a few days, was held as perfectly binding upon the donor (who in the case was the mother‑in‑law of the bride) although it was nor accompanied by physical transfer of land to the donee. The transaction was held to be Hiba‑bil‑ewaz and the argument the Hiba‑bil‑ewaz could only be for money consideration was rejected. It was further held in that case that the question of possession has to be judged having regard to the relationship between the donor and the donee and in the circumstances of that case, the requirement as to delivery of possession was also held to be satisfied. In Mohammad Esuph Ravutanv. Pattamassa Ammal (I L R 23 Mad. 70) a Muslim husband executed a deed of settlement of certain land in lieu of dower on his wife who left him shortly thereafter without acquiring possession. It was held in that case that it was a bona fide transaction of Hiba‑bil-ewaz and is supported by the proof of the actual passing of consideration, being release by the wife of her right to the dower and that such release was completed by her acceptance of the transfer under the settlement. In these circumstances, the gift by way of Hiba‑bil‑ewaz was upheld notwithstanding the fact that it was not followed by actual delivery of possession. The same view was taken in somewhat similar circumstances by this Court in Khuda Bakhsh etc. v. Mst. Khudeja Bibi (P L D 1968 Lah. 1001).

7. The precedent cases noticed above proceed upon the view that Hiba‑bil-ewaz, in essence, is a gift for a consideration and consideration for the gift may assume variety of forms ranging from monetary consideration to consortship. It is equally well established principle, that marriage under Muslim Law is essentially in the nature of a civil contract. According to section 2(d) of the Contract Act, 1872, promise to do something or to abstain from doing something in future is included in the definition of "consideration for the promise". In other words the passing of the consideration by the promisor and doing or abstinence from doing of the return act by the promisee need not be reciprocal. Accordingly, a gift in consideration for the proposed marriage will be perfectly valid and would become irrevocable on solemnization of marriage. With the performance of marriage, the donor "obtains a return for his gift", which is not subject to any further condition that the donor and donee will continue to live as man and wife.

8. For the foregoing reasons, I see no force in this appeal, which is dismissed in limine.

9. At the conclusion of his argument, learned counsel for the appellants prayed for a certificate of fitness for Letters. Patent Appeal. In my opinion, the matter admits of no doubt in face of the authorities cited above. I, therefore, decline to certify this case as fit for further appeal.

A. E. Appeal dismissed in limine.

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