Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: SARDAR BEGUM VS Respondent: IQBAL AHMAD
1986 C L C 1151
1986 C L C 1151
[Karachi]
Before Tanzil‑ur‑Rehman, J
Mst. SARDAR BEGUM‑‑Plaintiff
versus
IQBAL AHMAD and 10 others‑‑Defendants
Suit Nos. 183 of 1972 and 142 of 1980, decided on 30th January, 1986.
(a) Muhammadan Law‑‑
‑‑‑ Gift‑‑When and how complete‑‑Gift is constituted by proposal and acceptance and gets validity by possession‑‑Gift is not complete unless donor delivers possession of gifted property to donee‑‑Not essential for gift to be in writing.
A gift is a transfer of movable or immovable property with immediate effect and without consideration by one person in favour of another and the acceptance of the same by that another himself or by some one authorised on his behalf provided that one making the gift must totally renounce all his title and rights in the property gifted away of his independent free will. It is a covenant that is constituted by proposal and acceptance and gets completed by possession.
Gift is constituted by proposal and acceptance and gets validity by possession. Gift is thus, not complete unless the donor delivers the possession of gifted property to the donee.
It is not essential for the gift to be in writing.
A1‑iNukhtasar Quduri (Quran Mahal, Karachi p.128; Kanz al Daqaiq by Al‑Nasafi, Mutbai Mujtabai, Delhi P.332; Hidayah by Al‑Marghinani, Vol. III)p.283; Wazir Begum v. Noor Jehan P L D 1961 Kar.; Shamshad Ali v. Syed Hassan Shah P L D 1964 S C 143; Anjuman Islamia, Muzaffargarh v. Ashiq Hussain and another P L D 1967 Lah. 336; Ashiq Hussain and another v. Ashiq Ali 1972 S C M R 50; Raj Khan and 5 others v. Fazal Hussain and 5 others 1972 S C M R 267 and Ali Ahmad v. Government of Sind, P L D 1976 Kar. 316 at pp. 333, 336 quoted.
(b) Qanun‑i‑Shahadat Order (10 of 1984)‑‑
‑‑‑Art. 117‑‑Evidence Act (I of 1872), 5.101‑‑Gift‑‑Oral gift‑‑Onus, held, was on plaintiff to prove oral gift.‑‑[Gift‑‑Burden of proof].
(e) Muhammadan Law‑‑
‑‑‑Divorce‑‑Man had suffered attack of paralysis thus became unable to put his signatures on divorce deed‑‑Mere fact that divorce deed bore thumb‑impression of man, although he was a literate person, held, could not vitiate validity of divorce in circumstances.
(d) Muhammadan Law‑‑
‑‑‑ Marazul maut‑‑Definition and ingredients summarised.‑‑[Words and phrases].
"Maraz Maut" (mortal sickness) is the kind of sickness, such that in the condition of sick person there has generally been a fear of death for him, and the sick person being unable to attend to his business, if he is a man, his business outside the house, if she is a woman, her business inside the house, has died before a year has passed on account of this condition. Whether the person has been confined to his bed or not.
And if, when the illness of the sick man is prolonged, and one year passes while he is always in one' state, unless the illness of the sick man has got worse, and his state is changed he is like a man who is well, and his transactions are like the transactions of a man who is well.
But if his illness gets worse and his state changes and he dies before a year passes, his state remaining same until he dies, calculating from the time of the change is mortal sickness.
Comparatively there be greater possibility of occurrence of death in that illness than in others, and that illness makes the man so incapable that is unable to go out of his house on his daily business and perform his essential chores.
So, the ingredients of death illness may be summarised as under:‑
(1) The man or woman, on account of that illness, be unable to perform their daily chores. For instance, the man is not able to go out of his house and the woman is incapable of performing her household duties.
(2) Preponderance of the possibility of the occurrence of death in that illness.
(3) Imminent fear of the occurrence of death in that illness in the mind of the sick person.
(4) The occurrence of death during one year of the said sickness.
As an example, Muslim jurists have cited that diseases like pthysis (consumption) and paralysis, if progressively worsening, will be classed as death‑illness and if they are chronic and steady will not be regarded as such.
Majella A1‑Ahkam al Adliya quoted.
(e) Muhammadan Law‑‑
‑‑‑Divorce‑‑Pronouncement of divorce during Marzul Maut, held, would not be effective for purpose of inheritance provided the husband died of that illness within period of probation of that divorce.
If a man pronounces Irrevocable divorce to his wife during his death‑illness and dies in that illness during the observance of her term of probation she shall be entitled to inherit from him whether the divorce be irrevocable or she be thrice divorced. However, if the husband dies after the expiry of her term of probation of divorce, she shall not inherit from him.
A divorce pronounced during death‑Illness, shall not be effective for the purposes of inheritance provided the husband dies of that illness within the period of probation of that divorce.
Al‑Mukhtasar Quduri (Quran Mahal Karachi,'p.128; Kanz al Daqaiq 1 . At 14acnfi Mutabi Muitabai. Delhi n_ 332: Hidavah by Al‑Marghinani, (Tanzil‑ur‑Rehman, J)
Vol.I1I, p. 283; Wazir Begum v. Noor Jehan P L D 1961 Kar.; Shamshad Ali v. Syed Hassan Shah P L D 1964 S C 143; Anjuman Islamia Muzaffargarh v. Ashiq Hussain and another P L D 1967 Lah. 336; Ashiq Hussain and another v. Ashiq Ali 1972 S C M ~R 50; Raj Khan and 5 others v. Fazal Hussain and 5 others 1972 SCMR 267; Ali Ahmad v. Government of Sind P L D 1976 Kar. 316 at pp. 333, 336; Majella A1‑Ahkam al Adliya; Majma al Anhur by Damad Afandi (died 1078 A.H.), Cairo 1319 A . H . , Vol. I$ Chapter on Talaq al Mareez; pp. 427‑428; Fath al‑Qadeer by Ibn al‑Human (died 861 A . H .) Cairo 1356 A . H . Vol. III pp. 150‑155; Radd al Muhtar, a commentary on A1‑Durr al‑Mukhtar by Ibn Abidin (died 1252 A.H.) Cairo 1256, Vol. II p. 435; Muwatta by Imam Muhammad (Arabic) Kakhana‑e‑Tijarat Kutub, Noor Muhammad Karachi, Chapter on Talaq al Mareez pp. 257‑258; Bahr al Ra'iq by Ibn al Nujaim (died 970 A.H.) Cairo 1311 A.H. Vol. III VI, p. 266; A1 Mabsut by Imam Sarakhsi (died 482), Cairo 1324 A.H. Vol. VI, p. 55 ref .
Al‑Mukhtasar Quduri (Quran Mahal, Karachi p.128 and Mullas Muhammadan Law, 16th Ed. Chap. X section 135 distinguished.
(f) Muhammadan Law‑‑
‑‑‑Dower‑‑Possession of property being once peacefully and lawfully acquired, right of widow to retain such property till her dower debt was paid, held, was conferred upon her‑‑Right of property however would exiting on payment of dower.
Mst. Maina Bib! and others v. Chaudhri Bakil Ahmad and others 1925 Privy Council 63 and Gela Ram v. Mst. Mahbub Jan A I R 1942 Pesh. 92 ref.
Plaintiff in person (in Suit No.183 of 1972).
Muhamoodul Hassan for Plaintiffs (in Suit No. 142 of 1980). Mahmoodul Hassan for
Respondents (in Suit No. 183/73).
Respondent in person (in Suit No. 142/80).
Date of hearing: 21st January, 1986.
JUDGMENT
These are two cross suits (Suit No. 142/80 Iqbal Ahmad and others v. Mst. Sardar Begum ahd Suit No.183,/72 Mst. Sardar Begum v. Iqbal Ahmad and others. It may be stated that Suit No. 142/80 was filed by late Niaz Ahmad in the 6th Court of Civil
Judge and F.C., Karachi, registered as Suit No. 1584/67. After the death of late Niaz Ahmad in August, 1969, his legal representatives were brought on record and the suit was transferred to the IX‑Court of Civil Judge 2nd Class Karachi and was re‑numbered as Suit No.301/69. On filing the second Suit No.183/72 by Mst. Sardar Begum against the legal representatives of late Niaz Ahmad, in this Court, the earlier Suit No.301 of 1969 was transferred from the civil Court to this Court and was ordered to be registered here and that both the suits. be heard together. The said suit was registered as Suit No.142/80.
2. The facts as stated in plaint of Suit No.142 of 1980 are that the plaintiff late Niaz Ahmad married with the defendant Mst. Sardar Begum at Karachi on 13‑7‑1961. After the marriage she started residing with him at his house on the ground floor of A‑71/1, Khudadad Colony, Karachi. One of his sons (from his previous wife) resided at the first floor of the said house. The plaintiff divorced the defendant by pronouncing Talaq as per Talaqnama dated 22‑1‑1967. After the expiry of statutory period of 90 days and for failure of the conciliation proceedings before the Arbitration council in the Union Committee concerned, divorce became effective on and from 22‑4‑1967. After the termination of marital tie, on account of Talaq, no relationship of husband and wife subsisted between the parties and the defendant ceased to have right of residence in the said house on ground floor of the house No.A‑71/1, Khudadad Colony, Karachi. Despite repeated requests and legal notices served by the plaintiff on the defendant, she continued to reside in the said house; hence the plaintiff filed Suit on 21‑8‑1967, against the defendant for her eviction from the said premises and also for mesne profits at the rate of Rs.6 per day till she vacates the premises.
3. In the written statement filed by the defendant in the said suit on 10‑10‑1967, she admitted the marriage but stated that keeping her completely in dark he had already one wife, a number of aged and young children. After marriage the plaintiff "constructed the house for her and passed its possession for her exclusive use, assuring that she would be living there independently (sic.) of any interference either from the first wife or from the children of the first wife and further, promised .and assured that the part of the aforesaid house would be her own property as part of legal share of his property according to Muslim Law." He also from time to time assured her to execute Transfer Deed of the house in question but with the passage of time the influence of first wife and her children increased on him and her influence weaned. After giving perpetual mental and physical torture, he also sent her a Divorce Deed unilaterally, under a well‑considered scheme, which bears thumb‑impression of the plaintiff as alleged. It was further stated that the defendant was living in the house as an owner and as a legal share‑holder of the properties of the plaintiff and she has also spent her own considerable amount in construction of the house in dispute.
4. The other Suit No.183 of 1972 was filed by Mst. Sardar Begum on 11‑5‑1972 in this Court against the L.Rs. of her late husband, Niaz Ahmed. It was alleged that she was married with late Niaz Ahmad on 13‑7‑1961. Soon after the said marriage her late husband purchased a plot of land bearing No.A‑71/1 situated in Khudadad Colony, Karachi and after constructing two rooms thereon orally gifted the same to her and handed over its physical possession to her who started living there as owner. She thereafter got rest of the building constructed by her spending lot of money. The first floor after its construction was occupied by the son of Niaz Ahmad. On 23rd of September, 1964 late Niaz Ahmad was attacked by Cerebral Thrombosis and part of his brain suffered badly as a result of which he repeatedly lost his senses. Subsequently due to the said disease the right part of his body was paralysed and he thereafter could not sign, speak nor understand or comprehend anything as he lost his senses completely. It was alleged that in furtherance of the conspiracy hatched against her by the defendant, L.Rs. of late Niaz Ahmad to deprive her from legal right, got some thumb‑impression alleged to be that of her late husband on the plaint and many papers including a false Divorce Deed, a false Power of Attorney in favour of Wiqar Ahmad, in the said Suit No.301 of 1969 (now numbered as 142 of 1980) alleged to have been filed by the deceased. Late Niaz Ahmad also sent her the alleged Divorce Deed alleged to be sent by the deceased which is a forged one and is without the consent or knowledge of the deceased. She therefore, prayed for a declaration that she was not divorced by her husband and that she is legally entitled to get her share as widow in the estate of the deceased Niaz Ahmad. She also prayed for an account of movable and immovable properties of the assets left over by her late husband and that the same be administered under a decree of this Court.
5. The L.Rs. of late Niaz filed a written statement wherein it was denied that the brain of the deceased ever suffered or he lost his senses. It was asserted that he was in his full senses till his death. The allegation of obtaining false Divorce Deed or false Power of Attorney or thumb‑impression on plaint in the suit now numbered as 142/80 was also denied. It was submitted that no such plea was raised by the plaintiff (Mst. Sardar Begum) in the written statement filed in the said suit. Regarding divorce it' was further pleaded that the proceedings in respect of divorce took place before the Union Committee. The plaintiff was duly served and appointed her attorney who attended the proceedings. The plaintiff remained inactive in this respect till the date of filing the above suit. It was denied that late Niaz Ahmad did not put his thumb‑impression on the Divorce Deed or other documents.
It was thus asserted that the plaintiff was not a wedded wife of late Niaz. She is not a successor to the estate of the deceased and the suit is liable to be dismissed.
6. On or about 4‑12‑1967 a number of consent issues were framed in Suit No.142/80 previously numbered as 1584/67), as under:‑
(1) Whether the defendant had been living in the house in dispute from the beginning as a wife and has a right to live and occupy?
(2) Whether the defendant is entited to stay in the premises after divorce, if any?
(3) Whether the divorce has become effective as against the defendant pronounced by the defendant (sic)?
(4) Whether the defendant is entitled after divorce, for any share in the property of the plaintiff?
(5) To what relief if any the plaintiff is entitled?
7. On 22‑1‑1973 the following consent issues were framed' in Suit No. 183 of 1972.
(1) Whether Plot No.A‑71/1, Khudadad Colony with ‑two rooms were orally gifted by Mr. Niaz Ahmad, the deceased husband of the plaintiff and its physical possession handed over to the plaintiff?
(2) Whether the deceased husband of the plaintiff was attacked by Cerebral Thrombosis and part of his brain suffered badly as a result of which he lost his senses, and, whether as a result of the said disease his right part of the entire body was paralysed and thereafter he could neither speak nor understand anything having lost his senses?
(3) Whether late Niaz Ahmad was literate and always used to sign in Urdu or English and whether he ever put his thumb‑impression on any documents?
(4) Whether the alleged Divorce‑deed, Power of attorney and plaint in Suit No.301 of 69 bear thumb‑impression of late Niaz Ahmad?
(5) Whether the alleged divorce‑deed was forged and the same was sent to the plaintiff without the consent and knowledge of late Niaz Ahmad?
(6) Whether the plea of divorce is barred by the limitation?
(7) Whether the plaintiff entitled to a share in the properties left over by late Niaz Ahmad as his successor?
(8) Whether the properties mentioned in Schedule 'A' to the plaint belonged to late Niaz Ahmad or were purchased from the Niaz Ahmad or were purchased from the funds belonging to the deceased Niaz Ahmad?
(9) Whether late Niaz Ahmad was a partner in the firm of New Ruby Jewellers?
(10) Whether late Niaz Ahmad was proprietor of Niazi Jewellers?
(11) Whether issues Nos.l, 2, 6 are the subject‑matter of Suit No.301/69 in Civil Suit. If so its effect?
(12) To what relief the plaintiff is entitled?
8. In perusance of the order dated 19‑12‑1979 both. the suits were heard together and as per statement dated 7‑11‑1983 of the learned counsel for the parties the evidence of Mst. Sardar Begum recorded in Suit No.142/80 was treated as evidence of the plaintiff in Suit No.183/70. No attempt was made by the parties to file consolidated issues in the suits. Mr.Mahmoodul Hasan counsel for the L.Rs. of late Niaz Ahmed submitted that the issues framed subsequently in Suit No.183/72 covered the issues framed in Suit No.142 of 1980. This is partly correct. I, therefore, proceed to consider first the issues framed in Suit No.183 of 1972 and thereafter take up the issues in Suit No.142 of 1980. Suit No.183 of 1972.
Issue No.l.‑‑
9. The plaintiff (Mst. Sardar Begum) to prove the gift in her favour has examined herself and two witnesses, namely, Hamidullah who is her cousin, and Saeedur Rahman, who is her brother. She stated in her deposition that "the house was gifted to me orally". Hamidullah has simply stated "The house was later on gifted' to Mst. Sardar Begum". The other witness Saeedur Rahman stated in the examination‑in‑chief that "the gift made by late Niaz Ahmad was oral, but I do not remember the date. At the time of gift I, and Hamidullah son of Shafiqullah were present. In the cross‑examination he stated"I never visited the house of late Niaz Ahmad after marriage. The gift which have (sic) referred in my examination‑in‑chief took place before Niaz Ahmad suffered from paralysis. I used to visit the house of Sardar Begum off and on. I cannot give the year or the date on which the gift was made." He further stated that"Niaz Ahmad told in our presence that he has constructed this house for Mst. Sardar Begum. In the upper portion of the house where Mst. Sardar Begum came to stay, the son of late Niaz Ahmad, from his first wife used to live. I cannot say if any intimation was given to the son of late Niaz Xhmad, who was living on the first floor, about the gift in favour of Mst. Sardar Begum."
10. It is admitted by the above witness that he never visited the house of Niaz Ahmad after marriage. It, therefore, seems doubtful that he was at all a witness to the gift. Moreover, Sardar Begum has not mentioned the names of these two witnesses in her deposition. The other witness, Hamidullah only states that "the house was later on gifted to Mst. Sardar Begum" but his evidence is silent about the time (month or year) as well as the presence of the other witness Saeedur Rahman or any one else at the time of gift. Their evidence, to say the least, is vague. It does not inspire confidence, that the gift was made by Niaz Ahmad‑in favour of the plaintiff in their presence.
11. Mst. Sardar Begum except producing these two witnesses, has placed no document on the record to show that the property was gifted to her by her late husband and she exercised her right of ownership in respect of the portion of the house comprising of two rooms in her possession as owner thereof. On the contrary, she stated in para. 8 of her written statement filed by her in Suit No.1584/67(now numbered as 142/80). That:‑‑"after marriage the plaintiff constructed the present house for the defendant and passed on the possession to the defendant for her exclusive use of House No.A‑71/1, Khudadad Colony, Karachi saying and assuring that the defendant would be living there independently without any interference either from his first wife or from the children and further promised and assured that the part of the aforesaid house would be her own property as a part of legal heir of his property according to Muslim Law.
12. No plea of gift was taken in August 1967 when the written statement was filed. What can be reasonably inferred or interpreted from the contents of para. 8 quoted above is that the portion of the house where Mst. Sardar Begum is living was to remain under her exclusive use without any interference by the first wife or her children. No inference to the gift can be made there from.
13. A gift is a transfer of movable or immovable property with immediate effect and without consideration by one person in favour of another and the acceptance of the same by that another himself or by p some one authorised on his behalf is called 'gift' provided that one making the gift must totally renounce all his title and rights in the property gifted away of his independent free will. It is a covenant that is constituted by proposal and acceptance and gets completed by possession. It is thus stated in A1‑Mukhtasar Quduri (Quran Mahal Karachi p.128) Kanz al Daqaiq by AI‑Nasafi Mutbai Mujtabai, Delhi) p.332 and Hidayah by Al‑Marghinani, Vol. III, p.283. that gift is R constituted by proposal and acceptance and gets validity by possession. Gift is thus, not complete unless the donor delivers the possession of gifted property to the donee.
14. However, under the Islamic Law it is not essential for the gift) to be in writing. I may refer to Wazir Begum v. Noor Jehan P L D C 1961 Kar., wherein Waheeduddin and A.R. Khan, JJ., held that the oral gift of immovable property is valid provided possession too has been made over to the donee.
15. I may also refer to several other cases in this respect. The Supreme Court of Pakistan has, in the case of Shamshad Ali v. Syed Hassan Shah P L D 1964 S C 143 held that "Under the Muhammadan Law the delivery of possession to the donee is a condition precedent to the validity of gift... At the same time the legal requirement is that there should be delivery of possession by the donor. Anjuman Islamia, Muzaffargarh v. Ashiq Hussain and another P L D 1967 Lah. 336 of the Lahore High Court it was observed as under:‑
"The three essentials of a valid gift under Muslim Law; (1) a declaration or gift by the donor; (ii) an express or implied acceptance of the gift by the donee; and (iii) seisin, the delivery of possession of the gift property by the donor to the donee. It is of the essence of a gift that it should be completed by delivery of possession. The delivery of possession by the donor as a conscious, unequivocal and distinct act on his part is necessary to perfect the gift made by him. Mere registration of the deed of gift does not cure the defect in the delivery of possession to the donee."
16. In other two cases the Supreme Court observed that the delivery of possession by the donor as a conscious, unequivocal and distinct act on his part is necessary to perfect the gift made by him. Where, therefore, the land in dispute was in cultivating possession of the tenants and the donee was Mukhtar of the donor and he was collecting the produce from the tenants, it was held that the mere declaration in the gift‑deed that possession was delivered to the donee was not sufficient to complete the gift. Ashiq Hussain and another v. Ashiq Ali 1972 S C M R 50 and Haj Khan and 5 others v. Fazal Hussain and 5 others 1972 S C M R 267.
17. In a Karachi case Ali Ahmad v. Government of Sind, P L D 1976, Kar. 316 at pp.333, 336 it was observed that:
"It is well‑known that Muhammadan Law has prescribed just three simple but very essential requisites for a valid gift. These are: (1) a declaration of gift by the donor, (2) acceptance of the gift, express or implied, by or on behalf of the donee, and (3) delivery of possession of, the subject‑matter of the gift by the donor to the donee. In simple words, the three acts involved are that the donee should make a declaration of gift and give the gift property to the donee, and the latter should accept it. It is not even essential that the gift should be made in writing, for a written gift is as good as an oral one. The Privy Council upheld a verbal gift. Writing is, therefore, not essential to the validity of a gift, either of movable, or of immovable property. No mutation of names in the Record‑of‑Rights is also necessary to complete the transfer of possession of the gift property. A gift of lands in occupation of Haris may be completed by the donor asking the Haris to attorn to the donee, or by delivery of title deeds, or, by getting the mutation‑entries effected in donee's favour in the Record‑of‑Rights. A husband making a gift of the house to his wife which is in their joint occupation, may complete the delivery of possession of the corpus of the gift which is one of the essential requisites of a valid gift, by making a declaration to the effect that he gives the house to his wife as a gift alongwith its possession, on his wife accepting the property, the gift would be complete and valid under the Muhammadan Law. The same procedure would be true in the case of a house let put to the tenants, or in the case of land ‑ativated by Haris, if the tenants or the Haris are asked by the husband to attorn to his wife. In such cases the facts that the husband continues to lie in the house or receives the rents from the tenants, after the date of the gift, would not invalidate the gift, the presumption being that the rents were received by him on behalf of his wife, and not his own account. No transfer of possession is required in the case of a gift by a father to his minor child or by a guardian to his ward. All that is, however, necessary is to establish the bona fide intention to make the gift. The requirement of change of…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.