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Petitioner: SAR ANJAM KHAN VS Respondent: Mir AFZAL KHAN AND 14 Other
Court Name: Peshawar High Court Judge(s): Ghulam Safdar Shah, Abdul Hakim Khan Title: SAR ANJAM KHAN vs Mir AFZAL KHAN AND 14 Other Case No.: Civil Appeal No. 20 of 1968 Regular Second Appeal No. 24 of 1964 Date of Judgment:1971-09-30 Reported As: PLD 1972 Peshawar 37 Result: A.
JUDGMENT
JUDGMENT ABDUL HAKEEM KHAN, J.---Sar Anjam Khan brought a suit for declaration, that he is owner of 350/381 shares that is to say, 1508 Kanals, 8 Marlas, out of the land comprised in Khatas 1/5, 9, 12, 19 and 16/244 to 264, situated in Char Banda, Mardan, and that (1) the revenue record showing him to be owner of 35/65 shares is wrong; (2) the defendant-respondents 1 to 4, namely, Mir Afzal Khan, Azizur Rahman Khan, Muhammad Ayub Khan and Mst, Zubeda Begum have no right in the same; and (3) consequently, the defendant-appellants 5 and 6, namely, the Deputy Land Commissioner, Mardan, and the Government of West Pakistan (now N. W. F. P. Government) have no powers under the Land Reforms i.e., M. L. R. No. 64, even with respect to a part thereof. He further prayed for the grant of a permanent injunction against defendant-respondents 5 and 6 restraining them from exercising their powers under Martial Law Regulation No. 64, as respects the aforementioned land. 2. This may here be mentioned, that Sar Anjam Khan con--tends, that the land in suit was given in the year 1923 by Abdur Rahman Khan to Mst. Sardaro (whose solitary Shariat heir he happens to be upon her death in January 1960) as dower on the eve of their marriage. He further asserts, that after the transac--tion, Mst. Sardaro became the owner of 350/381 shares (leaving Abdur Rehman Khan with 31/38: shares), but in the revenue record, Mst. Sardaro's share was erroneously shown to be 35/66. It was because of this error, that when Abdur Rahman Khan died in 1954, most of the land which he had given in dower to Kist. Sardaro was also mutated to the names of defendant- respondents 1 to 4, who were his Shariat heirs besides Mst. Sardaro.
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3. Defendant-respondents 1 to 4 (first three are the nephews of Abdur Rahman Khan and the fourth is his second widow), however, asserted that the land in suit was not given in full ownership and that only a life-estate with respect thereto was created in lieu of dower. Subject, of course, to this observation, they conceded that the record should have shown her share as 355/381. Defendant- respondents 5 and 6 also took up identical grounds to resist the suit. 4. Taking into consideration various pleas raised by the parties, the following issues were settled:- (1) Whether the civil Court has got jurisdiction to entertain the suit for declaration and injunction against defendants 5 and 6? (2) Whether Mst. Sardaro was the full owner of the land in suit and the plaintiff Sar Anjam Khan is entitled to the relief prayed for? (3) If Issue No. 2 is not proved, to what shares are the parties entitled according to Shariat? 5. The learned trial Judge, Mr. Zafar All Khan, then Senior Civil Judge, Mardan, has found, that civil Court has jurisdiction, Mst. Sardaro was not the full owner of the disputed land-she was a limited owner entitled to usufruct of the land; and the plaintiff will get through Mst. Sardaro, the senior widow, 1/8 of the entire area, i.e., 1621 Kanals, 19 Marlas, which belonged to Abdur Rahman Khan, so to speak an area of 202 Kanals, 14.7/8 Marlas. On the view of the matter that he took, the learned trial Judge granted a declaratory decree to the plaintiff to the effect, that he was owner of 202 Kanals, 14.7/8 Marlas, and taking into conside--ration the partial success of the parties, he directed them to bear their own costs, vide his judgment and decree dated 28-10-1964, 6. Feeling aggrieved by the aforesaid judgment and decree, Sar Anjam Khan has preferred this First Regular Civil Appeal. 7. Though the parties were at issue on the jurisdiction of the civil Court, the finding of the learned trial Judge that civil Court has jurisdiction has not been seriously questioned and we think, rightly. Martial Law Regulation No. 64 came into force on 7-2-59. The lands which belonged to Mir Afzal Khan and his brother Azizur Rahman Khan defendant-respondents 1 and 2, respectively) came within its purview. It appears, that what these two defendant-respondents got out of the suit land, they surren--dered the same along with other lands, which were also resumable. Mst. Sardaro, who was then alive objected, asserting her full ownership on the basis of the dower deed executed by Abdur Rahman Khan in 1923. The Deputy Land Commissioner, Mardan, rejected the petition. There was an appeal by Mst. Sardaro to the Land Commissioner, Peshawar, but with no luck. It was dismissed on 1st October 1959. Still not satisfied, she moved the Chief Land Commissioner on 12th October 1959. As ill-luck would have it, she died on 30th January 1960. The Chief Land Commissioner disposed of the petition by his order dated 17-5-60 (Copy Exh. DW1/5. He, it seems, had no difficulty. Mst. Sardaro who could be given relief, even if she was held to be a life tenant, was dead by that time, and her heirs had not produced any succession certificate. Taking these into consideration, the Chief Land Commissioner ordered It is thus open to her heirs or reversioners to seek such legal remedy as they wish to pursue, in order to obtain title to the area in question. This revision petition be accordingly filed. 8. Now, the above quotation clearly shows that the Chief Land Commissioner has not given any decision upon the rival contentions, and, therefore, it will be idle to argue, that his deci--sion as reproduced in the quotation, ousted the jurisdiction of the Court by virtue of paragraph 4(6) of Martial Law Regulation No. 64. Bar of jurisdiction created by paragraph 27(2) is also not attracted; for, the order of the Chief Land Commissioner clearly envi--sages a declaration by the civil Court on the question of title raised before him. That a civil Court has jurisdiction to proceed in like circumstance is supported by the observation of the Supreme Court in Mst. Hajiani and others v. West Pakistan and others (PLD 1966 SC 114). In that case also, the Commission had permitted the female heir to move a civil Court in regard to her inheritance. Their Lord--ships observed:
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"As has been said above, the power of final decision in respect of every disputed matter is vested in the Commission and in our opinion it is subject to that power of final decision that the action of the Commission permitted the matter to be litigated before a Court should be interpreted and understood. In our view, if in the instant case, even if the Chief Land A Commissioner had not left the question open for determination by civil Courts, the Court would have had on the authority of Nawab Muhammad Farid Khan v. Muhammad Afzal Khan (1968 3 C M R 262) and Muhammad Khizar Hayat Khan v. Chief Land Commissioner (PLD 1968 Lah. 1145) ample jurisdiction to declare the title of a person who was not compellable under Martial Law Regulation No. 69 to file a declaration. We, therefore, uphold the finding of the learned, Senior Civil Judge that civil Court has jurisdiction. 9. The most crucial question, however, that arises for deter--mination and remains to be decided is: whether Mst. Sardaro was full owner on account of the dower deed of 1923? 10. Before we discuss the legal points that arise in this regard, it will be appropriate to reproduce the dower deed, copies of which have been exhibited on record as P. W. 3/1, P. W. 5/1 D. W. 2/1 1 Kabin Nama I, Abdur Rahman Khan son of Shad Muhammad Khan deceased, caste Khan Khel, Afghan, am resident of village Mardan, District Peshawar. Since my Nikah is to be performed with Mst. Sardaro daughter of Taj Muhammad Khan, resident of Mardan, I, therefore, being in possession of my discretion and sense, execute the present Kabin Nama to the effect that I give to the aforementioned lady from my ownership 1400 Kanals of Shah Nehri land, situate in Nasir Killi, Mahal Char Banda, Tehsil Mardan so long as she lives (TA-HAIN HAYAAT IS KE) in lieu of her dower. Possession of that has been given today. She herself will pay the land revenue and will herself appropriate the produce (PAIDAWAAR SE KHUD FAIDA UTHAIY GI). However, she will have no right to sell, mortgage, gift or exchange. The Khasra numbers are: 422, 446, 447, 477, 478, 462, 463, 466, 467, 468,716/300 to 315, 454, 455, 449, 456, 457, 460, 461, 475, 476, 418/481, 717/482, 450, 452, 420/481, 451, 453, 457, 444, 445, 465, 443, 458, 470, 473, 474, 441, 440, 469, 471, 472, 464, 739/461 and 470/479 (1400 Kanals from the aforementioned Khasra numbers). In ease the aforementioned lady does not feel happy in the present house, I will construct a separate pacca house for her near my own house, and whatever ornaments have been given in possession of the aforementioned lady, such ornaments shall belong to her. I shall have no concern, whatsoever, with them, and the land which has been given, I guarantee its title. In case, the area is found to be less, I will make up the deficiency in Nasir Killi. Written on 18th December 1927, Signature by Abdur Rahman placed in English. Further, Subedar-Major Khalil Khan, a paternal aunt's son of my wife Bibi Sardaro is present on her behalf. Further--more, if on my death the aforementioned lady gets married else--where, she will be ejected from the aforementioned property. 11. It may be mentioned that judicial opinion on the permis--sibility of life estates under Muslim Law has not been consistent and uniform. The earlier view of different superior Courts was to the effect that a life estate cannot be created by a Muslim, and that the grantee will take an absolute estate. 12. In Nizamuddin Ghulam and others v. Abdul Ghafoor and others ((1889) 13 I L R 264) and their Lordships observed as follows:- "It was next argued that, independently of the wakf, the settlement is valid as a grant by Karimuddin of his estate to his wives and their daughters for their lives, and that, in that view of the case Tahira would have had only a life estate in the property in suit, which on her death would have reverted to Karimuddin's next of kin. It was not, however, shown to us how Karimuddin could legally create such a life estate, or grant the property to his next of kin on the determination of the life estates. In his lifetime he made no grant, for he kept the possession of the property with himself until his death, and on his death, his estate would devolve on his heirs by Muhammadan Law; and, as said in the case of Ranee Khujooroonisa v. Mst. Roushan Jehan L R 3 I A 291 'the policy of the
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Muhammadan Law appears to be to prevent a testator interfering by will with the course of the devolution of property according to law among his heirs'. The creation by any life estate at all appears quite inconsistent with the Muhammadan Law-See Mst. Humeeda v. Mst. Budlun 17 C W R Civ. Rul. 525. It might be that by consent such an estate might be ---created, but as a general rule, the donee in such a case would take an absolute estate All our masters are agreed that when one has made a gift and stipulated for a condition that is fasid, or invalid, the gift is valid and the condition void'. (Baillie's Mohammadan Law, P. 537). So in the Hedaya, III, p. 3000 it is said 'An amree, or life grant, is nothing but a gift and a condition; and the condition is invalid; but a gift is not rendered null by involving an invalid condition'. We may also quote the case of Claekkeenokutti v. Ahmad I L R 10 Mad. 196, as an authority against the validity of this settlement under which next of kin claim that the property was given to them after the death of the wives and aulad and aflad of the donor. The settlement, therefore, must be rejected from the case altogether. It is not valid as a Wakf and it is not valid as a deed of gift to the donor's wives and daughters." 13. In Amjad Khan v. Ashraf Khan and others (AIR 1925 Oudh 568) Ashworth, A. J. C. After an illuminating and elaborate discussion, observed at page 573 of the report as follows:- "The law, therefore, must be interpreted to mean that the owner of estate may retain what is virtually a life-estate, but he cannot transfer anything more than a mere use. If he purports to transfer some thing more, than the use, namely a use, which is not recoverable during the term for which it is granted, and which can be lent or leased to another or otherwise alienated, he will be held to have transferred not only the use, but also the corpus. A life-estate, therefore, can only, under Muhammadan Law, be created by reservation after the transfer of the corpus. It cannot be created by transfer to another whether the corpus is retained or not by the donor." The argument, viz., there was nothing in the Hedaya to support the gift of a life-estate, still there was nothing to prevent it, was overruled by his Lordship's observation "I find this passage concerning the amree on pages 308 and 309 to be a clear indication that the gift (Hiba) of a life estate is forbidden in the sense that it will be construed as a gift of an absolute estate." The further reasoning of his Lordship in support of the obser--vations is also weighty, but we need not reproduce them in the present context. It is true that: When this case was taken to the Privy Council (we refer to AIR 1929 P C 149), their Lordships of the Privy Council agreed with the view of the Oudh High Court that gift to Mst. Waziran was of a life interest of entire property with the power of alienation in respect of one---third of the property, but the judgment itself records that their Lordships of the Privy Council did not on that occasion consider it necessary to express any opinion, as to whether or not, gift of a life-estate is valid under the Muhammadan Law. 14. So far as the contrary view, upholding the validity of a life-estate under the Muslim Law is concerned, the following authorities can be referred to with advantage. 15. In Sartaj Fatima v. Muhammad Jawad and others (AIR 1931 Oudh 6), it has been observed that a gift by one person to another of a Guzara for the lifetime of the latter with a continuance in favour of the male heirs of the donee, could be made without offending any principles of Muhammadan Law. 16. In Rasoolbibi v. Yousaf Ajam Pigerdi (AIR 1933 Bom. 234), the creation of life-estate by a Musalman in favour of a Surni lady was upheld. Rangnekar, J., however, did not subscribe" to this view, and observed that life estate of the daughter under the Muhammadan Law was a grant of absolute estate, and she took the property absolutely. 17. In Bai Sarobbai v. Hussein Somji and others (AIR 1936 Bom. 330), which is a Full Bench ruling, the gift of life-estate by a Muhammadan Sunni Musalman was held to be valid. B. J. Wadia, J., however, dissented, observing:
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"A gift of the rents and profits of a property does not carry with it a gift of the entire property. A right to enjoy the usufruct of property during the grantee's life can also be conferred, if that is the clear intention of the grantor." 18. In Abdul Khaleque Mondal and others v. Bepin Behari Bose and others (AIR 1936 Cal. 465), it has been held:-- "Life-estate created under the will by a Musalman will remain in force until his death, whether it is valid or invalid under the Muhammadan Law. 19. In Archidurddin Ahmad v. Sakina Bewa and another (AIR 1946 Cal. 288), Chakravarty, J. Observed:- "There is nothing in the texts of Hanafi law under which a life-estate created directly as a life-estate and not by way of a limitation on an absolute grant is Invalid whether such an estate is created by a deed of gift or a will. Nor is there any sanction in any decision of the Judicial Committee for forbidding such life-estates." 20. Then there is the ruling of the Privy Council in Nawazish Ali Khan v. Ali Raza Khan (AIR 1948 P C 134), which has been considered to be the source material by the superior Courts in the Indo-Pak. Sub-continent on the power of a Musalman to create a life-estate. In a few words, the ratio decidendi of this ruling is that where there is gift of corpus conditions limiting the grant will not be valid, and there will be an absolute gift. However, where there is a gift of usufruct, it will be permissible for the donor to place restrictions or limitations. We shall be adverting to this ruling in detail at appropriate stage. 21. The aforementioned authority has been relied upon in Mst. Inayat Begum v. Mst. Maryarn Bibi and another (PLD 1953 Pesh. 1), wherein it has been held that there is no substantive or positive rule of the Hanafi School of Muslim Law preventing the creation of a life-interest in property. In a subsequent case, which arose out of that very deed, namely, Mst. Bibi Alam Taj and others v. Mst. Inayat Begum (PLD 1963 Pesh. 199), their Lordships observed, that Muhammadan Law recognizes Interest of limited duration in the usage of property and thus a person can create a life-interest in his property in favour of a particular individual and his descen--dants. This latter case was taken in appeal to the Supreme Court, vide Civil Appeal No. 20 of 1968. Their Lordships of the Supreme Court held that the impugned document created life-estate. The question, whether life-estate could at all be created by a Musalman, however, does not appear to have been argued before their Lordships. 22. It may be mentioned here, that by and large the entire case-law on the point has been reviewed in an illuminating judgment of the High Court of West Pakistan in Mst. Khan Bibi v. Safia Begum and others (PLD 1969 Lah. 338), and the ratio in the words of Mr. Justice Shamim Hussain Qadri is:- "The consensus of opinion of different authors on Muhammadan Law supports the proposition that where corpus of the property is transferred for life-time and the conditions are attached thereto, the gift is valid but the conditions are void. However, where the intention of the maker of the gift is to transfer the usufruct of the property then in that case a limited interest is created for a particular time and, therefore, conditions can be attached to it such as the reversion of the property to the donor after the expiry of the limited period." In the aforementioned report a reference to the observations of Karam Elahi Chauhan, J. Also will be no less rewarding. His Lordship after dealing exhaustively with the conceptual differences between the English and Muslim Laws relation to property pointed out the peculiarities of a gift under Muslim Law. In this context his Lordship observed that gift is of two types, namely, "(a) Hiba which is confined only to the transfer of rights of full ownership of the corpus of any property; or (b) A'ariat which is the transfer of some limited interest in the benefits, produce, profits, usufruct or In
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the use of the property". His Lordship then proceeds to tabulate the distinguishing features of the two and eventually sums up as follows:-- "'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 Muhammadan Law. As opposed to this, there is a concept of life interests which means the 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-interests or interests for life in the usufruct of the property." It will be noticed, that as per Karam Elahi Chauhan, J., the deed in the case gave a right of residence to the donee in the two houses and that the gift, therefore, was an a'ariat and not a hiba. 23. The latest ruling in the matter is Farid v. Mst. Nur Bibi (PLD 1970 Lah. 502), decided by M. A. Zullah, J. This case relates to a gift of land, measuring 52 kanals, 10 marlas Including a kotha thereon, to a wife by the husband on or about the time of marriage, wherein the mutation clearly stipulated, that the estate was (TA-HAIN HAYAAT TA NIKKAH SAANI), In this Lahore case also, the donee contendei" that the gift in dispute was that of corpus and not of usufruct and conditions attached to it were void, while his opponent's case was that the donee was allowed only usufruct of the disputed land, and that the transfer of the corpus of the land did not alter the position. A perusal of the report will show, that Mst. Khan Bibi v. Mst. Safia Begum and others, was distinguished, and the gift was found to be one which was not in the nature of a'ariat. It was observed, that since Mst. Nur Bibi lived with her husband and he used to maintain her, the land was, therefore, not given for maintenance. Furthermore, a specific piece of land was transferred to the respondent, Mst. Nur Bibi, and the word 'arazi' was used in that context throughout in the mutation and was repeated in the revenue records. It was pointed out, that if the respondent had been allowed maintenance out of the usufruct of the land, there was no need of transfer of specific piece of land, and that she could have been allowed a share from the produce of the whole of the land belonging to the appellant. In the result, his Lordship found that the gift was of corpus, and as such, Mst. Nur Bibi took the land as an absolute owner, the conditions that the land was given for life or till remarriage being void. 24. It will be noticed, that in the above-mentioned rulings from Lahore, namely, Khan Bibi v. Safia Begum and Farid v. Mst. Nur Bibi, the dictum of the Privy Council in Nawazish Ali Khan v. Ali Raza Khan, that where there is gift of corpus conditions are void but a limited interest takes effect out of the usufruct, has been followed and that after a careful analysis In each case, the document was classified. The transfer in Mst. Khan Bibi, was found to be a'ariat-a gift of usufruct and in Farid's case it was found to be a Hiba, a gift of corpus. We will also be doing likewise for precedents laid down by the Privy Council remain s binding on us, vide, the weighty pronouncement of the Supreme Court in the State of Pakistan and another v. Mehrajuadin (PLD 1959 SC (Pak.) 147), even though we have got our views, regarding the validity of limited interests under Muslim Law, which we humbly place on the record in the hope, that these might prevail with the Supreme Court whenever such a question is taken before their Lordships with a view to set at rest the conflict of Judicial opinion which, it seems to us is of a fairly long standing and relates to funda--mentals of Muslim Law applicable to an overwhelming majority of our population. 25. But before we place our view we will like to mention that as far as our reading of the Privy Council ruling is concerned, that also is no authority for the validity of life estates under Muslim Law. A reference to the Privy Council report will show, that the property in that case comprised two estates. One was known as 'the Oudh Estate' and the other as 'the Juliana Estate'. The intestate succession to the former was governed by section 8 of the Oudh Estate Act, 1869 and to the latter, though it was a grant, Muslim Personal Law, was held to be applicable. The validity of two wills
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which affected the two estates came up for consideration. By the first will, which was by Nawab Nasir Ali Khan, he appointed three successive legatees for their respective lives. The relevant extract from the will reads:-- Now" under section 11 of Act I of 1869, I, by means of this will, do hereby appoint Nawab Fatah All Khan son of my late brother Nawab Nasir Ali Khan, my executor and successor of all this Taluqdari estate with all the rights and interest aforesaid and do hereby authorise the executor that whatever Taluqdari powers over the above-mentioned ilaqa, and over all the properties movable and immovable I the said declarant have my devisee, to wit, Nawab Fatah Ali Khan after my lifetime shall have like myself the very same powers including the power of possession and enjoyment as owner provided he be alive. Similarly after the lifetime of the devisee Nawab Fateh Ali Khan shall, if alive, be his successor. He shall also have the very same powers as have been bestowed on Nawab Fatah Ali Khan by means of this deed of will, After the lifetime of my son Nawab Muhammad Ali Khan, Nawab Hidayat Ali Khan son of the late Sir Nawab Haji Nawazish Ali Khan Saheb shall be his successor provided he be alive. After all these three successors the fit amongst the descendants of the successors shall succeed." The second will was by Muhammad Ali Khan at a time, when the third legatee Nawab Hidayat Ali Khan under the earlier deed was already…
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