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Second Appeal No. 479 of 1957, decided on 16th April 1959.
‑Hiba‑bil‑iwaz‑Deed not sustainable for want of consideration‑Can be treated as simple hiba.
Where a document cannot be sustained as hiba‑bil‑iwaz for want of consideration, it can be treated as a simple hiba if the intention of the donor and the necessary elements of a valid hiba are present.
Ismail Mussajee Mookerdum v. Hafiz Boo 10 C W N 570 (P C), Mst. Hanifunnisa and another v. Chaudhurain Mst. Faizunnisa 15 C W N 521 (P C) and Mst. Sardar Khatun v. Secretary of State and others A I R 1939 Sind 9 ref.
Gift‑Recital in deed of delivery of possession‑Conclusive and binding on heirs of donor.
Where the deed of gift itself recites that the donor has given up possession of all his properties to the donee, such a recital is binding on the heirs of the donor. The word "binding" means that the heirs are bound by it. Even if it does not amount to estoppel, it throws a heavy burden on the donor or those who claimed through him to show that the statement was untrue or false.
Mst. Sardar Khatun v. Secretary of State and others A I R 1939 Sind 9 ; Shaikh Muhammad Mumtaz Ahmed and others v. Zubaida Jan and others I L R 11 All. 460 and Mst. Jamilunnisa and another v. Shaikh Muhammad Zia 170 I C 824 rel.
Jhumman v. Hussain and others 129 I C 161 distinguished.
Moinul Haq for Appellant.
Rajendra Kumar Banik for Respondents Nos. 1‑3.
In this appeal the only question that was agitated before me is whether a deed characterised as hiba‑bil‑iwaz, having fallen through for want of consideration, can be treated as a simple hiba and, if it can be treated as such, then whether the recital in the document about the fact of delivery of possession by the donor to the donee of the subject‑matter of the gift, is conclusive or not.
2. The trial Court decreed the suit of the plaintiff for decla ration that the disputed hiba‑bil‑iwaz is void holding that the hiba‑bil‑iwaz in favour of defendant Saleh Meher Bibi, second wife of the donor Abdul Hai, failed for want of consideration, namely, that the defendant failed to prove the passing of the consideration, i.e., a holy Quran in lieu of which the gift was made.
3. On appeal by the defendant, the learned Subordinate Judge held that though the hiba‑bil‑iwaz falls through for want of consi deration, it can be treated as a simple gift if it is otherwise valid; in other words, if all other elements of a valid gift are present. He found that the gift was valid and, in fact, there was delivery of possession of the property by the donor to the donee as well as the necessary declaration of the intention of the donor of divesting himself in praesenti of the right, title and possession of the property to the donee and also that the gift was accepted by the donee. In coming to this finding, the learned Subordinate Judge, besides other evidence on record as to the delivery of possession, relied on the recital in the document where it has been definitely stated that the possession of the property gifted away by the deed of gift was delivered to the donee and she accepted the gift and the possession of the same. He dismissed the suit of the plaintiffs, who are the sons of the donor by his first wife and the first wife of Abdul Hai, the donor. Hence this appeal by the plaintiffs.
4. It is contended by Mr. Huq on behalf of the plaintiffs appellants that the learned Subordinate Judge is wrong in holding that if the hiba‑bil‑iwaz fell through for want of consideration it can be treated as a valid simple gift if the elements of a valid gift are present there. His second contention is that there is no evidence of delivery of possession of the property by the donor to the donee ; on the other hand, it is admitted that the donor, even after the alleged gift, continued to possess the same and the learned Subordinate Judge is absolutely wrong in holding that the recital in the deed of gift as to the fact of delivery of possession is conclusive and is binding on the plaintiffs who are the heirs of the donor.
5. As to the first point, it has been held by their Lordships of the Privy Council in the case of Ismail Mussajee Mookerdum v. Hafiz Boo (10 C W N 570 (P C)) as follows:‑----
"Notwithstanding that a transaction was purported to be a sale and a price was mentioned in the conveyance, it was held on the evidence to be a gift and not a sale‑the question being regarded as purely one of intention."
In. that case, Sir Arthur Wilson observed at page 580 as follows :‑----
"The fact that the sum of Rs. 10,000 is mentioned as the price, a sum which, according to the evidence, was far short of the actual value of the property, and the fact that the sum is stated to have been paid in advance whereas in fact it was not paid at all, are strong to show that the transaction was not a sale but a gift, with an imaginary consideration inserted, in a manner common in such transactions in India."
Similarly, in a later case of Mst. Hanif‑un‑nisa and another v. Chaudhurain Mst. Faizunnissa (15 C W N 521 (P C)), their Lordships of the Privy Council reversed the decision of the Allahabad High Court which held that the defendant was precluded by the provisions of section 92 of the Indian Evidence Act from giving parol evidence for the purpose of showing that the aforesaid deed of sale was in reality intended by the executant to be a deed of gift. So it is quite clear that even if the document is not valid as a hiba‑bil‑iwaz the Court can consider whether it can be treated as a simple gift having regard to the intention of the donor. In the present case, there is no doubt that there is such an intention on the part of the donor, the husband, to make the gift of the property to his wife, the donee. In the case of Mst. Sardar Khatun v. Secretary of State and others (A I R 1939 Sind 9). Tyabji, J., who delivered the judgment, sitting in the Division Bench, held as follows:‑---
"Whenever a transaction is relied upon as being hiba‑bil‑iwaz, it certainly includes the allegation that it is a hiba valid according to the Mahomedan Law."
Therefore, there is no doubt that if a document cannot be sustained as hiba‑bil‑iwaz for want of consideration, it can be treated as a simple hiba if the intention of the donor and the necessary elements of a valid hiba are present there.
6. As to the second contention of the learned Advocate for the appellants that the learned Subordinate Judge is absolutely wrong in holding that the recital in the document as to the fact of delivery of possession is conclusive, in the case of Shaikh Muhammad Mumtaz Ahmed and others v. Zubaida Jan and others (11 I L R All. 460 (P C)), their Lordships of the Privy Council held:
"A declaration by the donor in the deed of gift that possession has been given binds the heirs of the donor; and possession once taken cannot be invalidated by any subsequent change of possession."
7. In the present case there is a definite recital that the donor has given delivery of possession of the property, the subject‑matter of the gift, to the donee who accepted the gift and took possession of the same. The contention of the learned Advocate is that though the recital is binding on the heirs of the donor it is certainly not conclusive. It is difficult for me to understand the argument of the learned Advocate. If it is binding on the heirs of the donor, at least it throws a heavy burden on them to prove otherwise. In the case of Mst. Sardar Khatun v. Secretary of State and others, Tyabji, J., relying on the Privy Council case of Shaikh Muhammad Mumtaz Ahmed and others v. Zubaida Jan and others, also held:
"Where the deed of gift itself recites that the donor has given up possession of all his properties to the donee, such a recital is s binding on the heirs of the donor". In support of the contention that the recital is not conclusive though it is binding on the heirs of the donor, the learned Advocate relied on the case of Jhumman v. Hussain and others (129 I C 161), where, at page 162, Mr. Justice Bisheshwar Nath Srivastava, sitting as a Single Judge of Oudh Chief Court, observed:
"Next it was argued that the declaration about possession having been delivered to the donee, contained in the deed of gift, is quite enough. Reference was made to Shaikh Muhammad Mumtaz Ahmed v. Zubaida Jan in support of the proposition that declaration by the donor that possession has been given binds the heirs of the donor. This is so but I cannot regard this as meaning that such declaration is conclusive. The plaintiff supplemented this declaration by the evidence of a number of witnesses examined by him to prove delivery of possession. The learned Subordinate Judge after an examination of the entire evidence has come to the conclusion that actual possession remained with Rahim who managed the property till the time of his death and that the evidence does not prove delivery of possession by Rahim to the plaintiff in his life‑time. This finding must be accepted as correct in Second Appeal.
It is not open to the plaintiff in the face of this finding to argue that the delivery of possession had taken place in the case."
There the donee was a minor nephew of the donor and was incap able of taking possession of the property and the evidence adduced was that delivery of possession was given to the minor and not to his guardian. But in the present case it is perfectly clear that there was delivery of possession by the donor to the donee. The finding on evidence as well as on the recital in the document itself is that not only the property was delivered to the donee but also the deed of gift was also handed over to her and she subsequently executed another deed of gift in favour of her children, defendants Nos. 2 and 3. It is contended by the learned Advocate that it is admitted that even after the gift the donee continued to remain in possession of the property gifted away and, as such, the recital in the deed of gift is not conclusive to make the gift valid and binding. It must not be forgotten that it is a gift of immovable property by the husband to his wife. The word "binding" means that the heirs) are bound by it. Even if it does not amount to estoppel, it certainly throws a heavy burden on the donor or those who claimed through him to show that the statement was untrue or false [Vide Mst. Jamilunnissa and another v. Shaikh Muhammad Zia (170 I C 824)]. There is nothing on record to show, that the statement in the deed is untrue or false. The only thing contended is that the donor continued to possess the property as before. The fact that the husband continues to live in the house or to receive the rents after the date of the gift will not invalidate the gift, the presump tion in such a case being that the rents are collected by the husband on behalf of the wife and not on his own account. If the donor continues to possess the property and manage the same, it must be taken that possession and management were on behalf of the wife until and unless it is proved that his intention was otherwise. There is no such evidence to prove such intention of the donor after the gift. In the circumstances, it cannot be held that the learned Subordinate Judge is in any way wrong in holding that the deed is a valid hiba under the Mahomedan Law. Even if the document falls through as hiba‑bil‑iwaz for want of valid consi deration, it can take effect as a valid simple hiba, if it is otherwise valid under the Mahomedan Law.
8. The result, therefore, is that this appeal is dismissed with costs and the judgment and decree of the lower Appellate Court are affirmed.
K. B. A./A. H. Appeal dismissed.
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