JUDGMENT

Tek Chand, J. - The property in dispute, which consists of agricultural land, 137 kanals 18 marlas in area, belonged originally to one Gur Sahai, a Ghirth of Tikka Kaloha in Dehra tahsil Kangra District. Gur Sahai died sonless, leaving a widow Mt. Matto, plaintiff-appellant, and a daughter. On Gur Sahai's death Mt. Matto succeeded to his property on the usual widow's life estate. On 23rd February 1915, Mt. Matto appeared before the village patwari and reported that, about a year before, she had gifted the land to her son-in-law Shibbu, who was in possession since Rabi 1915. There was no mention in the report that the gift was in any way conditional. The mutation was sanctioned by the revenue officer on 19th March 1915, who stated that the donee Shibbu was in actual possession and incidentally mentioned that he rendered services to the widow and agreed to do so in future.

2. The donee Shibbu died sometime in 1922 and the land devolved on his minor son Malhu. Malhu died without issue or widow in 1930. The daughter of Mt. Matto had predeceased Malhu; the exact date of her death is not clear on the record. On Malhu's death mutation was effected in favour of the defendants who are his collaterals and are not connected with Mt. Matto or her husband Gur Sahai in any way. The present suit was instituted by Mt. Matto against the collaterals of Malhu for a declaration that she was in possession of the land in dispute as owner, as the gifted property had reverted to her on the line of the donee becoming extinct. The suit was resisted by the defendants on the ground that the gift was an absolute one, as it was one of the conditions of the gift that the donee would pay the debts of the donor and that he had actually done so. It was accordingly urged that the gifted property did not revert to the donor. No evidence, however, was led to prove that it was one of the conditions of the gift that the donee would pay the debts of the donor or that any such debts were paid, or that any debts were in fact due at all. The learned trial Judge held that on the termination of the line of donee the land reverted to the donor according to the principles laid down in the leading Full Bench case, Sitaram v. Rajaram (1892) 12 PR 1892. He further held that the gift was apparently made for the benefit of the plaintiff's daughter and her issue, and as her line had become extinct the property would revert to the plaintiff. The learned Judge, however, found that the plaintiff was not in possession as erroneously alleged by her, and therefore, he allowed an amendment of the plaint so as to convert the suit into one for possession, and passed a decree for possession of the land in favour of the plaintiff.

3. On appeal the learned Senior Sub-Judge has reversed the decision and dismissed the suit. In an unnecessarily lengthy judgment, he has tried to make a simple case complicated and has entered into an irrelevant discussion on matters which had no bearing whatever on the case before him. The learned Judge has observed that the gift in question came in the category of hiba-bil-iwaz, and following a Division Bench judgment of this Court reported in Fateh Ali Shah v. Mahomed Bakhah AIR 1928 Lah 516 he held that such a gift was absolute. Now hiba-bil-iwaz is a technical expression of Mohammedan law, and it is always dangerous to import such technical terms into decisions of simple cases under the Customary law. In the case relied upon by the learned Judge the gift was by a Gardezi Sayed of Multan City to a prostitute, whom he had married, and had been made in lieu of dower. The learned Judges held that such a gift was hiba-bil-iwaz and passed an absolute estate to the donee, which, on her death, it devolved on her heirs and not the heirs of the husband. Obviously, this case has not got the remotest connexion with the case before us. The learned Judge then referred to the Answer to Question 54 of Middleton's Customary Law of the Kangra District. That Question and