JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

Civil Revision 779/2008

JUDGMENT

Date of hearing..18.4.2016. Announced on 6.5.2016.

Petitioner(s) (Haji Muhammad Yaqoob etc)

By Mr. Abdul Sattar Khan, Advocate.

Respondent(s) (Muhammad Riaz etc)

By Mr. Muhammad Taif Khan, Advocate.

YAHYA AFRIDI,J.- This revision is directed

against the judgment and decree of the learned

Additional District Judge-III, Mardan dated

16.08.2008, vide which the judgment and decree

dated 30.5.2007 of the learned Civil Judge-XII,

Mardan, through which the declaratory suit of the

petitioners was decreed, was set aside and suit of

the petitioners was dismissed.

2. The petitioners-plaintiffs instituted a

declaratory suit against the respondents-

defendants, in the Court of Civil Judge-XII,

Mardan, to the effect that the property measuring

1600 kanals, fully detailed in the heading of the

plaint, situated in Mauza Babini, Tehsil and

District, Mardan (“disputed property”), is the

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ownership-in-possession of the petitioners-

plaintiffs according to Jamabandi for the year

1991-92. And mutation No.901 dated 9.10.1973,

mutation Nos.939, 940 and 941 dated 24.5.1975,

mutation No.1074 dated 20.6.1978, mutation

No.1191 dated 10.1.1980, mutation No.1224 dated

10.9.1980, mutation 1248 dated 16.4.1980,

mutation No.1249 and 1257 dated 16.4.1981,

mutation No.1355 dated 30.12.1982, mutation

Nos.1542 and 1543 dated 24.11.1985, mutation

No.1573 dated 21.4.1986, mutation 1601 dated

5.1.1987 and mutation No.1843 dated 18.7.1990,

by Mst.Mahboob Sultana, or her attorney in favour

of respondents-defendants are illegal having no

legal effect upon the rights of the petitioners-

plaintiffs; and that petitioners-plaintiffs also sought

permanent injunction and possession of the

disputed property, if they failed to prove

possession of the disputed property.

3. The averments made in the plaint are

that the disputed property was initially the

ownership of Fateh Muhammad Khan, the

predecessor-in-interest (grand father) of the

petitioners-plaintiffs, who transferred the same to

his daughter-in-law, Mst.Mahboob Sultana (step

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mother of the petitioners) through a registered

dower deed/Kabinnama dated 09.09.1927

(“Kabinnama”), with a condition that

Mst.Mahboob Sultana could use the disputed

property in her life time or her second marriage,

but she had no right of mortgage or sale and after

her death the property would be devolved upon her

male children; that the transaction was vide

mutation No.23 dated 28.11.1927 incorporated in

the revenue record by Fateh Muhammad Khan, in

favour of Mst.Mahboob Sultana; that thereafter,

the same was incorporated in Jamabandi for the

year 1929-32 and mistakenly, the revenue staff

showed Mst.Mahboob Sultana as ‘full owner’

instead of ‘limited owner’; that Mst.Mahboob

Sultana and her attorney/defendant No.1, sold part

of the disputed property through the impugned

mutations, mentioned hereinabove; that husband of

Mst.Mahboob Sultana, namely, Muhammad Ayub

Khan and his father, Fateh Muhammad Khan, are

dead; that Mst.Mahboob Sultana died issueless,

while her husband Muhammad Ayub Khan has

two sons (plaintiffs-petitioners) from his second

wife; that the mutation and power of attorney in

favour of defendant No.1 by Mst.Mahboob Sultana

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are liable to be set aside on the ground that father-

in-law could not give dower to his daughter-in-

law; that according to Kabinnama, Mst.Mahboob

Sultana was limited owner and not full owner; that

mutations and power of attorney are based on

fraud and collusion; and finally that Mst.Mahboob

Sultana was ill and remained in coma for some ten

years before her death.

4. The defendants were summoned,

those who appeared in Court filed their written

statement, while the rest were placed ex parte. The

divergent pleadings of the appearing parties were

reduced into the following issues:-

1. Whether the plaintiff has got the cause

of action?

2. Whether the suit is within time?

3. Whether the plaintiffs are estopped

from suing?

4. Whether the plaintiff is owner in

possession of the suit land?

5. Whether mutation Nos.901 dated

9.10.1973, 939 to 941 dated

24.5.1975,1074 dated 20.6.1978,

1191 dated 10.1.19080, 1224 dated

10.9.1980, 1248 and 1249 dated

16.4.1980, 1257 dated 16.4.1981,

1355 dated 30.12.1982, 1542 and

1543 dated 24.11.1985, 1573 dated

21.4.1986, 1601 dated 5.1.1987,

1843 dated 18.7.1990 and registered

power of attorney document No.108

attested on 23.7.1960 on behalf of

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Mahboob Sultana in favour of defdt:

No.1 are wrong, fraudulent,

collusive, without consideration and

against the law, and ineffective upon

the rights of the plaintiffs?

6. Whether the plaintiff is entitled to

the decree for declaration/ perpetual

injunction and possession as

consequential relief as prayed for?

7. Relief.

ADDITIONAL ISSUE.

8. Whether Kabeennama dated

29.11.1927 was stipulated with the

condition of “life estate” in favour

of Mst.Mahboob Sultana. If so, its

effect?

5. After recording evidence adduced by

the parties in support of their respective claims,

and hearing the learned counsel for the parties, the

learned Civil Judge-XII, Mardan vide judgment

and decree dated 30.05.2007, decreed the suit in

favour of the petitioners-plaintiffs in terms:-

“As sequal to my above discussion

and discussion under issue No.5

and 8 the said deed is illegal and

void and the disputed property as

admitted by the parties was the

ownership of one Fateh

Muhammad Khan the predecessor-

in-interest of the plaintiffs.

Therefore, plaintiffs are entitled to

the decree as prayed for in para

No.1, 2 and 3 of the head note of

the plaint.

Relief. The suit of the plaintiffs is

decreed. There is no order as to

costs. File be consigned to SRR,

Mardan after its completion.”

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6. Feeling aggrieved from the said

judgment and decree of the learned Civil Judge-

XII, Mardan, the respondents-defendants filed

appeal before the learned Additional District

Judge-III, Mardan, which was accepted in the

following words:-

“During the course of arguments

learned counsel for the appellants

while placing reliance on PLD

(Peshawar) 1972 page 37, CLC

2008 page 803 and SCMR 2007

page 800 coupled with section 84 of

Muhammadan Law to substantiate

the contention about the fact that

the transfer by way of dower in

favour of a particular woman

cannot be subjected to any clog nor

can the same be termed life estate

alleging the transferee to enjoy the

usufruct alone. The capability of

father in law to effect transfer of

property in favour of his daughter-

in-law in lieu of her dower, nothing

being available in rebuttal,

therefore, while deriving wisdom

from the aforesaid case law, it is

held that transfer in favour of

Mst.Mehboob Sultana by the

grandfather of respondents/

plaintiffs could not be termed

creation of limited estate and was

transfer of complete ownership in

her favour, hence, subsequent sale

and gift transactions by

Mst.Mehboob Sultana herself or on

her behalf are genuine, which also

remained unchallenged from the

father of respondents/plaintiffs,

who was no one else but husband of

Mst.Mehboob Sultana and the said

transactions took place during his

lifetime.

Similarly, the remaining

portion of the suit property not

disposed of by Mst.Mehboob

Sultana is declared as her legacy

and appellants Muhammad Riaz

Khan and Yaqoob Khan being her

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real brothers besides other brother

and sisters if any shall succeed to

the same as Mst.Mehboob Sultana

was admittedly issueless and her

husband is also admittedly dead,

therefore, her inheritance shall

devolve upon her two brothers i.e.

appellants besides other brothers

and sisters if any more and not

impleaded in the present lis.

For the foregoing reasons

both the appeals are accepted and

consequently, the suit filed by the

respondents/plaintiffs is hereby

dismissed. Parties to bear their own

costs. Requisitioned record be

returned, while file of the court be

consigned to record room.”

Hence, the revision petition in hand.

7. The main thrust of the worthy counsel

for the petitioners was that the ratio decidendi of the

judgment rendered by this Court in Saranjam

Khan’s case (PLD 1972 Peshawar 37), has not

been correctly appreciated by the appellate Court.

The gift in the present case was regarding usufruct

of the disputed property and not its corpus, which

can be clearly ascertained from the Kabinnama and

the incorporation thereof in the revenue record,

especially, the findings of the revenue officer and

the Registrar; it was further contended that

successive entries in the revenue record in favour of

Mst.Mahboob Sultana, did not confer any title upon

her, and in fact, the gift was duly inked, which was

thereafter registered and hence would have

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precedence over any other evidence, and in

particular the entries in the revenue record; that

despite the clear stipulation in the Kabinnama for

non-alienation of the disputed property, and in

particular the endorsement so made by the Sub-

Registrar at the time of registration of the

Kabinnama, would expose all transfers made by or

on behalf of Mst.Mahboob Sultana without lawful

authority and a nullity in the eyes of law; that the

purchaser of the said property could not claim any

rights or protection under section 41 of the Transfer

of Property Act, 1882; and that Kabinnama clearly

stipulated that the legal heirs of Fateh Muhammad

Khan, being the present petitioners, would inherit

the disputed property after Mst.Mahboob Sultana

was to expire and thus the gift of the usufruct of the

disputed property terminated. In support of his

contentions, the worthy counsel for the petitioners

placed reliance on Mst. Bibi Alam Taj and other’s

case (PLD 1963 (W.P) Pesh 199), Sar Anjam

Khan’s case (PLD 1972 (Pesh) 37)(Para 10),

Hamida’s case (PLD 1975 (SC) 624), Suba’s case

(1992 SCMR 1721), Muhammad Ali’s case (PLD

1994 (SC) 245), Mool Chand’s case (PLD 1994

(SC) 462), Abdul Hameed’s Case (PLD 1997 (SC)

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730), Fateh Muhammad’s case (1982 CLC 2082),

Ali Kabar Khan’s case (PLD 1986 (Pesh)-01),

Ismail’s case (1990 SCMR 1667), Muhammad

Nawaz and others’s case (2005 SCMR 710), Abdul

Hamed’s case (PLD 2008 (SC) 140), and Mosam

Khan’s case (2012 CLC 1944)10).

8. In rebuttal, the worthy counsel for

respondents 1 and 2 vehemently opposed the

contentions of the worthy counsel for the petitioners

and asserted that the Kabinnama clearly gifted the

corpus of the property to Mst.Mahboob Sultana and

thus, any stipulation provided therein barring her

from alienation or impairing her right as a complete

owner was void, as was clearly enunciated by this

Court in Saranjam Khan’s case (supra); that the

Kabinnama was not a gift deed, but in fact a dower

deed; and that the same provided for a contingency,

which according to Muhammadan Law was not

permissible, as provided under sections 163 and

164; that there is presumption of truth attached to

the successive and long standing revenue entries,

which cannot be agitated by the petitioners at a

belated stage, especially when their father during his

life time did not oppose or resist the action of

Mst.Mahboob Sultana, when the contested

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alienations were being made. The worthy counsel

for respondents 1 and 2 placed reliance on Farid

(represented by legal heir’s case (PLD 1970

Lahore 502), Sar Anjam Khan’s case (PLD 1972

(Pesh) 37), Muhammad Shabir Ahmad Khan’s

case (PLD 2001 SC 18), Muhammad Zubair and

others’s case (NLR 2005 Civil 570), Anjum

Mahmood and 5 others’s case (2006 CLC 876),

Ch.Muhammad Ashraf’s case (2008 YLR 650), and

Maj. Rifat Nawaz’s case (2008 CLC 803).

9. Valuable arguments of the learned

counsel for the parties heard and the record perused

with their able assistance.

10. This is a very interesting case. Both

parties are seeking reliance upon the law laid down

by this Court in Saranjam Khan’s case (supra).

They also agree that the true intent of the donor

regarding the nature of the transfer can be

ascertained from the terms stipulated in the

Kabinnama. And finally, the parties are also in

accord that in case the transfer intended was that of

the corpus of the disputed property, then the clog on

the authority of the donee, limiting the same only to

her life time would be void. Whereas, in case the

intent of the donor was to transfer only the usufruct

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of the gifted property, then the donee would have

limited interest in the disputed property and

condition barring her from authority thereon during

her life time would be valid.

11. Now, before this Court proceeds any

further in reviewing the terms of the Kabeennama, it

would be very pertinent to understand the legal

purport of a gift, and that too made to a women on

her marriage in lieu of her dower.

Let us start with some of the illustrating

verses of the Holy Quran, as translated in english by

A.Yusuf Ali, they are as under:-

“And give the women (On marriage) their

dower as a free gift; but if they, Of their own

good pleasure, remit any part of it to you,

take it and enjoy it with right good cheer (IV:

4).”

“O ye who believe! You are forbidden to

inherit Women against their will. Nor should

ye treat them with harshness, that ye may

take away part of the dower ye have given

them,-except where they have been guilty of

open lewdness, on the contrary live with

them on a footing of kindness and equity. If

ye take a dislike to them it may be that ye

dislike a thing, and Allah brings about

through it a great deal of good. (IV:19).”

“But if ye decide to take one wife in place of

another, even if ye had given their latter a

whole treasure for dower take not the least

bit of it back; would ye take by slander and a

manifest wrong? (IV:20).”

“And how could ye take it when he have

gone in unto each other; and they have taken

from you a solemn covenant? (IV:21).”

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The matter of gift to a women, and her rights

of receiving dower, has been a matter of great

attention of the Holy Prophet, as recorded in the

Ahadiths compiled and recorded by eminent jurists.

Let us review some of the illuminating Ahadiths on

the matter, as recorded by Sahih Muslim;

“3972.Jabir b.’Abdullah (Allah be pleased

with them) reported Allah’s Messenger (may

peace be upon him) as saying: whoever a

person is gifted a life grant, then it is for him

(belongs to him and to his posterity), for it

belongs to him who has been given it. It

would not return to him who gave it for he

conferred it as a gift (it becomes the property

of the donee and as such) rules of

inheritance will apply to it.

3973.Jabir b. ‘Abdullah ( Allah be pleased

with them) reported Allah’s Messenger (may

peace be upon him) as saying: He who

conferred a life grant upon person, it

becomes his possession and that of his

successors, for he surrendered his right in

that by his declaration. (This property) now

belongs to one to whom this life long grant

has been made, and to his successors .Yahya

narrated in the beginning of his narration.

Whatever, man is given a life grant, then it

belongs to him and his posterity.

3977.Jabir b.’Abdullah (Allah be pleased

with him) reported Allah’s Messenger (may

peace be upon him) say saying: Life grant is

for one upon whom it is bestowed”.

Gift has also been commented upon in

“Hedaya” by Charles Hamilton (1975 Edn) at pages

488 and 489 in terms that:-

“If a person makes a gift a house to another,

on condition that the donee give back a part

of it, -- or, if a person make a gift of his

house in charity to another on condition that

the receiver of the charity give him

something in exchange for part of the

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house,-- such gift or charity be valid: but the

condition annexed is invalid, because it is

contrary to the spirit or intendment of the

contract: and neither gifts nor charities are

affected by being accompanied with an

invalid condition because the Prophet

approved of Amrees (gifts for life), but held

the conditions annexed to them by the

granter (namely, the condition of restoration

upon the demise of the grantee) to be

void…………………. Case of life grants,-

An Amree: or life grant, is lawful to the

grantee during his life, and descends to his

heirs, because of the tradition before

quoted… Besides, the meaning of Amree in a

gift of a house (for example) during the life

of the donee, on condition of its being

returned upon his death:- The conveyance

of the house, therefore, is valid without any

return: and the condition annexed is null,

because the Prophet has sanctioned the gift

in this instance, and annulled the condition,

as before mentioned. An Amree, moreover, 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, as

has been already demonstrated.

Similarly, Digest on Muhammadan Law by

B.E. Bailie, describes and explains the concept of

“Gift” in Islamic Jurisprudence in terms that:-

“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; as if one should give

another a female slave, and stipulate ‘that

shall not sell her, or ‘shall make her an com-

i-wulud’, ‘shall sell her to such an one’ or

‘restore her to the giver after a month,’ the

gift would be valid, and all the conditions

void. Or if one should give a mansion, or

bestow it in alms, on condition ‘that the

donee shall restore some part of it,’ or ‘give

some part of it in lieu, or exchange,’ the gift

would be lawful and the condition void. It is

general rule with regard to all contracts

which require seisin, such as gift and pledge,

that they are not invalidated by vitiating

conditions.”

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We can also seek guidance from the treatise

on Muhammadan Law by D.F.Mulla, wherein in

paragragh-164, a gift with an condition is described

in terms:-

“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.”

12. During the preparation era, it is noted

that gift has also been a matter of extensive legal

discourse in various judgments handed down by the

superior Court. The first authoritative decision,

which was brought to the attention of this Court was

of Nawab Umjad Ali Khan’s case (1867 Moores

Indian Appeal cases 517). In this case, the gift of

government promissory notes by a father to his son

was a matter of dispute. There was a stipulation for

the interest on the said securities to be applied for

religious and charitable purposes. The worthy Privy

Council concluded that the arrangement between the

father and son constituted a valid gift, as the corpus

of the securities was handed over to the son and

thus, the gift was complete. As far as, the stipulation

of payment of interest for charitable purposes, it was

held to be valid, being temporary, and enforceable

against the son during his life time. This view was

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followed by Privy Council in Wazir Hassan’s case

(AIR 1925 Oudh 568), Amjad Khan’s case (AIR

1929 P C 149) and finally, explained in Nawazish

Ali Khan’s case (AIR 1948 P C 139). It is in this

case that, the Privy Council very clearly elaborated

upon the concepts of gifts in Islamic Jurisprudence.

The relevant extracts is absorbed in para-19, as

under:-

“What Muslim law does recognize and insist

upon, is the distinction between the corpus of

the property itself (ayn) and the usufruct in

the property (manafi). Over the corpus of

property the law recognizes only absolute

dominion, heritable and unrestricted in point

of time; and where a gift of the corpus seeks

to impose a condition inconsistent with such

absolute dominion the condition is rejected

as repugnant; but interest limited in point of

time can be created in the usufruct of the

property and the dominion over the corpus

takes effect subject to any such limited

interests………………………………………

………………………………………………..

Their Lordships feel no doubt that in dealing

with a gift under Muslim law, the first duty

of the Court is to construe the gift. If it is a

gift of the corpus, then any condition which

derogates from absolute dominion over the

subject of the gift will be rejected as

repugnant; but if upon construction the gift

is held to be one of a limited interest the gift

can take effect out of the usufruct, leaving

the ownership of the corpus unaffected

except to the extent to which its enjoyment is

postponed for the duration of the limited

interest.”

(emphasis provided)

13. After partition, the legal facets of Hiba,

as formulated by Privy Counsel in Nawazish Ali

Khan’s case (supra), were further developed by the

superior Courts of our country. Some of the

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celebrated decisions in this regard are Mst.Inayat

Begum’s case (PLD 1953 Peshawar 1), Dana

Meah Choudhury’s case (PLD 1955 Dacca 39),

Wali Muhammad’s case (PLD 1958 (WP) Lahore

198), Mst.Bibi Alam Taj’s case (PLD 1963

Peshawar 199), Khuda Bakhsh’s case (PLD 1968

Lahore 1001), Mst.Khan Bibi’s case (PLD 1969

Lahore 339), Farid’s case (PLD 1970 Lah 502),

Saranjam Khan’s case (PLD 1972 Peshawar 37)

Said Akbar’s case (PLD 1975 SC 37), Ch.Zahur

Ilahi’s case (PLD 1975 SC 383), Fateh

Muhammad’s case (1982 CLC 2080), Mst.Kaneez

Bibi’s case (PLD 1991 SC 466), Abdul Hameed’s

case (PLD 1997 SC 730), Mst.Samia Naz’s case

(2002 SCMR 164), and Mst.Bibi Alam’s case (2005

SCMR 714).

14. Interestingly, the concept of corpus,

despite being most crucial in determining the true

nature of the Gift, has no definite legal definition.

This being the position, we will have to resort to the

ordinarily dictionary meaning of the said term,

which include;

The Oxford English Reference Dictionary

“1. A body or collection of writings, texts,

spoken material etc. 2. A distinctive structure

in an animal body.”

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The Australian Oxford Dictionary (Second Edition)

“1. A body or collection of writings, texts spoken

material etc. 2. A structure of a special character in

the animal body.”

Oxford Thesaurus of English-Third Edition

“collection, compilation, body, entity, whole,

aggregation, mass”.

Blacks Law Dictionary (Eight Edition) (Latin “Body”)

“the property for which a trustee is

responsible; the trust principal, Also termed

res; trust estate; trust fund; trust property;

trust res; trust”.

Legal and Commercial Dictionary (The Law Lexicon).

“A body; human body; an artificial body

created by law, as a corporation; a body or

collection of laws; a material substance;

something visible and tangible, as the subject

of a right; something having local position as

distinguished from an incorporeal physical

substance as distinguished from intellectual

conception; the body of an estate, or the

capital of an estate.”

Corpus Juris Secundum (Volume Twenty)

“Latin, literally a “body” hence a human

body; something having local position, as

distinguished from an incorporeal right; also

an artificial body created by law; and also a

body or collection of laws; an aggregate or

mass (of men, laws, or articles); physical

substance, as distinguished from intellectual

conception. In a derived but somewhat

different sense, the body, or the capital of an

estate; the body of the estate, devise, or

bequest from which the income is derived;

the principal as distinguished from the

income derived therefrom; also the original

principal plus those increases which legally

attach thereto.

The word occurs frequently in the

civil law in the sense of a substantial or

positive fact, as distinguished from what is

equivocal and ambiguous; a corporeal act of

any kind, as distinguished from animus or

mere intention, on the part of him who

wishes to acquire a thing; whereby he

obtains the physical ability to exercise his

power over it whenever he pleases.”

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Thus, keeping in view the above definitions, corpus

in relation to a gift of an immoveable property

would be constituted, on the delivery of the entire

body of the gifted property to the donee and on him

having complete authority thereon and that too, to

the exclusion of any other person including the

donor. However, it would also be important to note

that delivery of possession, being the essential

ingredient of gift, has been viewed rather liberally in

favour of a donee-wife. In this regard, the Apex

Court in Mst. Kaneez Bibi’s case (supra), while

discussing gift made by a father-in-law to his

daughter-in-law in lieu of marriage has discussed

the requirements of delivery of possession observed

that;

“The plethora of case-law on the question of

the delivery of possession in cases like the

present one; when the husband is the donor

for a wife living with him, when the father is

the donor for a daughter and/or a minor

living with him or a father-in-law for a

daughter-in-law and/or her husband living

with him, was not at all noticed. It may, be

straightaway remarked that in such like cases

strict proof by the donee of transfer of

physical possession, as in other type of cases,

is not insisted upon. To cite only one example;

the Privy Council three quarters of a century

ago in the case of Ma Mai and another v.

Kallandar Ammal AIR 1927 Privy Council 22

had observed that in the case of gift of

immoveable property by such a close relation

of the female as are mentioned above, once

mutation of names has been proved the

natural presumption arising from the

relationship existing between the donor and

the donee, the donor’s subsequent acts with

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reference to the property would be deemed to

have been done on behalf of the donee and

not on his own behalf. This line of authority is

so woven in a chain which is very rarely

broken. The obvious consensus has to be

followed and adopted in this case also, there is

absolutely no reason for departure. Whatever,

Atta Muhammad, the father-in-law of Mst.

Kaneez Bibi did either for cultivation of the

gifted land or for collecting the share/produce

from the tenants or even changing the tenants

would be presumed as acts done or steps taken

on behalf of the donee, daughter-in-law. In

extremely rare cases where the donee lady is a

very active member of the society, may be an

urbanized educated one, managing her affairs

effectively herself the position might be

different; but there is nothing in this case to

suggest such a position of the donee and/or

her conduct. From the appearance of the

parties also the above supposition gets

strengthened, although it is not necessary as a

proof.”

(emphasis provided)

15. While going through the precedents on

the issue, it was noted that there was a difference of

opinion regarding gift being made in lieu of dower

or marriage to be Hiba-bil-Ewaz or otherwise. The

Lahore High Court in its judgment rendered in

Khuda Bakhsh’s case (supra), explained the

various types of Hiba-bil-Ewaz and regarded gift in

lieu of dower or marriage to even come within the

purview of a false Hiba-bil-Ewaz. While, this Court

in Saranjam Khan’s case (supra) differed with this

view and opined the same not to a Hiba-bil-Ewaz.

However, this matter has now been settled by the

Apex Court in Kaneez Bibi’s case (supra), wherein

it was finally resolved and settled that;

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“This controversy was examined by Mr.

Justice Karam Elahi Chauhan in the context

of the two types of gifts in cases like the

present one, those in lieu of dower simpliciter

and those in lieu of marriage. It appears that

at one stage the learned Judge though as if

both these cases might be covered by fake

Hiba-bil-Ewaz, but at another stage it was

treated as real true Hiba-bil-Ewaz,

particularly one in lieu of marriage. In the

changed circumstances since 1969, vis-à-vis,

our Constitutional set up and thrust towards

Islamic principles for guidance, would lead

us towards thinking that it would be true

Hiba-bil-Ewaz. That being so, we reiterate

the view already taken in the case of Murid

Hussain that in cases of Hiba-bil-Ewaz in

lieu of dower and/or marriage, physical

delivery of possession would not be necessary

so as to complete the gift.”

(emphasis provided)

16. One other very important aspect, which

this Court would like to highlight, is that, whenever

a gift is being made to a bride, the sanctity attributed

to the said transfer has been held and placed at a

much higher legal pedestal than a gift made to any

other person. In this regard, we have the injunctions

of the Holy Quran, and the consistently narrated

Ahadiths, which have been duly narrated

hereinabove. This special protection and sanctity

rendered to a gift to a bride has been clearly

explained in Saranjam Khan’s case and elaborated

in detail by the Apex Court in Kaneez Bibi’s case,

(supra). Their lordships of the Apex Court were of

the view that;

“The condition under attack in cases of gift to

a bride or bride to be or a wife, would be

21

against public policy, as envisaged in Islam.

As an illustration; in this very case it appears

the lady and/or her parents had agreed to the

marriage only on the assurance of making of

the gift. After making the gift if she is

deprived of its real worth, then she would be

deemed to have been inveigled into an

agreement/contract of marriage, under a

representation about a gift which could not be

treated as real.”

17. In view of the above legal discourse, it

may be appropriate to summarize the same in

terms:-

I. In view of Article 2A read with Article

227 of the Islamic Republic of Pakistan, 1973,

it is but a command of the constitution, that

not only are the existing laws required to be

brought in conformity with the injunction of

Islam as laid down in Holy Quran-and-

Sunnah, the same have to be applied in

interpreting all laws and instruments,

II. That besides a gift of the corpus, the

Islamic Law also recognizes a gift of the

usufruct of the property;

III. That if it was found that what had

been gifted was the corpus of the property

then any condition attached to such a gift

would be illegal while the gift itself would be

perfectly valid.

IV. If corpus of the gifted property is not

transferred to the donee by the donor, then

any condition limiting the authority of the

donee over the gifted property can validly be

restricted or time bound.

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V. Property transferred in lieu of dower

and or marriage is by now settled to be “Hiba

bil ewaz”.

VI. The property transferred in lieu of

dower and or marriage, the physical delivery

of possession thereof would not be necessary

so as to complete the gift.

VII. Any condition on a gift to a bride or a

bride to be or a wife would be against a public

policy and injunctions of Islam.

VIII. That the mere fact that the gift was till

life time or till Nikah would not be sufficient

by itself to hold that the gift was only of the

usufruct and not of the corpus.

IX. That in cases of gift to close family

members including wife, once the gift is

proved to be officially recorded in the revenue

record or with the registering authority, then

the natural presumption arising from the

relationship existing between the doner and

the donee, would be that the doner’s

subsequent acts with reference to the gifted

property would be to have been done on

behalf of the donee and not on his own

behalf.

X. In order to determine whether corpus

or the usufruct of the gifted property has been

transferred to the donee would depend upon

the true intent of the doner discernible from

the oral and documentary evidence produced

by the parties.

XI. That no strict rule can be fixed for

determination as to whether corpus of the

23

gifted property has been transferred or

otherwise. The factors to be considered to

decide the same would include;

-the title of the document,

-the terms stipulated in the instrument

transferring the gifted property,

-the incorporation of the gift in the revenue

record,

-the entries following the transfer as reflected

in the revenue record,

-the actions and inactions of the donor and

the donee,

-the authority exercised over the gifted

property i.e. the receiving of rent, payment of

utilities and taxes.

18. The above being the legal position, it

would now be appropriate to review the contents of

the Kabinnama (Exh. PW 2/1). The english

translation of the same, as recorded by the

Draftsman of this Court, is as under:-

Kabeen Nama

“I, Fateh Muhammad Khan s/o Khan Shad

Muhammad Khan, cast Afghan Khankhel,

Profession landlord, declare that, the Nikah of Mst.

Mehboob Sultan d/o Khan Bahader Saad Ullah

Khan r/o Umarzai, is solemnized in accordance with

“Shariah” with my son Muhammad Ayub Khan,

therefore, in lieu of dower of lady named above of

landed property measuring 400 “Jerab” Shahnehri

(irrigated) situated in revenue estate Babani, on

which a separate “Banda” known as Fatima

Koroona alias Noshali Kallay with the boundaries

as, North other landed property of the deponent,

South, land of revenue estate of “Taoos Banda”

ownership of Nawab Muhammad Akbar Khan

Sahib Hoti, East, metal road of District Board

known as road “Sudham” West, Canal Shakh No.3

middle Kalpani Lower Swat, which is cultivated

through tenant and occupancy tenant, and

ownership in possession of the deponent, transferred

along with all rights except the rights of “Khani”

24

along with following conditions; that transferee will

enjoy the benefit of the property in her life time,

while on her death her male issue will be entitled to

receive the benefits of the above mentioned landed

property. Apart from above mentioned landed

property, entire golden ornaments and clothes which

were prepared and given to her are also in lieu of

her dower and her ownership. Further for residence

one “Pakka” and “Kham” constructed house,

wherein mother of Muhammad Ayub Khan is

residing, with the boundaries as, North, orchard of

the deponent, South thoroughfare, East, houses of

the tenants of the deponent, West “Pakka”

residential house of the deponent is also given in

lieu of Haq-e-Mehr to the above named lady. Apart

from the above Rs. 100/- as monthly maintenance

will be paid by me to the above named lady.

Therefore this document as “Kabeen Nama” is

scribed and I am bound to register the same. Copy

of the document is retained by the deponent.

(14th July, 1927)”

(Emphasis provided)

The careful reading of Kabinnama reveals

that Fateh Muhammad Khan, father-in-law of

Mst.Mehboob Sultana, had transferred to her four

different properties; firstly, 400 Jareeb (1600

kanals) of Shah Nehri land in revenue estate Babani,

Mardan, Secondly, gold ornaments and clothes,

thirdly, residential house and finally, Rs.100/- per

month to be paid for maintenance of her day to day

expenses. The first three properties were gifted in

lieu of her dower. While, the dispute in hand only

relates to the interest transferred in the immoveable

property measuring 400 Jareeb. The essential

particulars of the stipulations relating thereto, as

stated in the Kabinnama, were in terms;-

25

(i) “Immoveable property was transferred

to Msts.Mehboob Sultana in lieu of

dower.

(ii) The immoveable property comprising

of 400 Jareeb Shah Nehri irrigated,

which was cultivated through tenants

and occupancy tenants.

(iii) The ownership, possession and all

rights arising there from were

transferred to Mst.Mehboob Sultana

excepts the rights of “Khani”.

(iv) Mst.Mehboob Sultana was to enjoy the

benefit of the property in her life time.

(v) The benefits of the property after the

death of Mst.Mehboob Sultana was to

be inherited by her male issue.”

19. Now, keeping in mind the

aforementioned terms of the gift, what is crucial to

determine is whether the transfer of interest in the

gifted property by Fateh Muhammad Khan, the

donor was intended to convey the entire corpus of

the gifted property or only its usufruct. As stated

earlier, this crucial issue would have the ultimate

deciding effect upon the outcome of the present

petition. In case, this Court comes to the conclusion

that the transfer of the gifted property was for the

entire corpus, and not restricted to its usufruct, in

that case any restricting condition contained in the

Kabinnama, whereby the authority of Mst.Mehboob

Sultana was being impaired would have to be

declared as void.

26

20. Let us first, consider the stipulations of

the Kabeennama rendering authority to the donee.

The same reads;

“ownership in possession of the deponent,

transferred alongwith all rights except the

rights of khani”.

Through this stipulation, Fateh Muhammad

Khan has transferred to Mst.Mehboob Sultana, all

his interest in and arising from the gifted property

except his customary status of a Khan, which he

retained for himself. Thus, from the language of the

Kabinnama, the intention of the donor was to

convey to the donee, all interests and rights arising

therefrom. Coupled with this clear stipulation, the

entries in the Jamabandees, which immediately

followed the registration of the Kabeenname, and

thereafter consistently recorded has entered

Mst.Mehboob Sultana, as the full owner of the

disputed property. Her title in the revenue record

remained unchallenged by the donor, his son Ayub

Khan or any other person during their and her entire

life. The effect of this silence on their part is more

deafening, as admittedly Mst.Mehboob Sultana has

during her life time transferred part of the gifted

property to others, and that too without any protest

27

or challenge by any one including the donor and his

legal heirs during their or her life time.

21. No doubt, the Kabinnama contains

stipulations, which restricts the authority of the

donee over the gifted property and to enjoy the

benefits therefrom during her life time. This transfer

of interest in the gifted property, at least during the

life time of the donee was complete, and that too,

without any reservation or inclusion of another.

Moreover, what is also interesting to note is that,

there is no express stipulation for not mortgaging or

further transferring the enjoyment of the benefits of

the said property during her life time.

22. This would take us to another

restricting stipulation of the Kabeennama; which

reads;

“While on her death, her male issue will be

entitled to inherit the same”.

This condition is also very crucial in determining the

true intention of the donor. By doing so, the donor

has expressed his intention of constituting a fresh

stock of decent in respect of the gifted property,

which would be different from the one, had there

been no such stipulation or gift. This stipulation

clearly mitigates the intended transfer being

28

temporary, and that too being restricted to its

usufruct. In similar circumstances, the apex Court in

Said Akbar’s case (PLD 1975 SC 377), has

considered such a stipulation to be crucial in

determining the gift to be that of the corpus, and not

of the usufruct of gifted property. The apex Court

explained the same in terms that:-

“Not only that the word is followed by a

declaration by the executant that

henceforward he and his heirs will be

completely divested of any right whatever in

the land and then follows a statement as to

the real motivation for making the gift

namely the impending marriage of the donee

with Said Afzal. The further provision which

also goes a long way to demonstrate that the

intention was to create a gift of the corpus

and not of mere usufruct of the property is

that Mst. Totia Begum was constituted a

fresh stock of decent in respect of the

property which clearly militates against life

estate. The instrument expressly provides

that on her death the property will devolve

upon her husband and any children born out

of the wedlock who were the persons entirely

different from the line of heirs of the donor,

under the Muslim Law of inheritance.

Therefore, upon proper construction of the

instrument we have no doubt whatsoever that

the learned Judge in the High Court came to

the right conclusion that the gift in favour of

Mst. Totia Begum was corpus of the

property, which constituted her to be an

absolute owner of the property, and,

therefore, the condition prohibiting the sale

of mortgage of property by her during her

lifetime became void.

(emphasis provided)

23. This Court is also alive to the remarks

recorded by the Sub-Registrar at the time of

registration of the Kabinnama. However, the same

are attributed to certain letters, which were not

29

produced in evidence. Hence, the veracity thereof

and its effect in the face of the consistent and long

standing entries of complete owner in favour of Mst.

Mehboob Sultana in the Jamabandees, and that too

without any protest by Fateh Muhammad Khan or

any other person, during the life time of the donor

and the donee, would be crucial and of no legal avail

to the present petitioners.

24. Thus, the accumulative effect of the

stipulations regarding the transfer of interest arising

from the disputed property being complete except

that of Khani; no evidence produced by the

petitioners denying the possession or ownership of

the done; the long standing consistent entries of

ownership and possession in favour of Mst.

Mehboob Sultana, in the revenue record, without

any protest or challenge made by the donor or any

other person on his behalf, during his life time; and

the fact that part of the disputed property was

transferred through mutations, and that too without

any protest by the donor or any person on his behalf

and that too during his life time; the stipulation of

male lineage to inherit, would all surely constitute

the clear intention of the donor to pass on the

complete and absolute corpus of the disputed

30

property to Mst.Mehboob Sultana. This being so, the

stipulation of her enjoying such benefits during her

life time would be void, while transfer being valid

and lawful.

Accordingly, for the reasons stated

hereinabove, this Court is in accord with the

conclusion reached by the Appellate Court in

accepting the claim of the present respondents.

Thus, the findings of the Appellate Court warrants

no interference by this Court in its revisional

jurisdiction. This revision petition is thus, dismissed

with no order as to costs.

Announced on

Dated. 06.05..2016.

JUDGE

*M.Gul*