Judgement

Consolidated Appeal (No. 150 of 1920) from a judgment and two decrees

Law Rep. 49 Ind. App. 195 ( 1921- 1922) Mohammad Abdul Ghani V. Fakhr Jahan Begam

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(December 19, 1917) of the Court of the Judicial Commissioner, reversing a decree of the Subordinate Judge of Kheri.

The suit was brought by the appellants to eject the respondents from certain immovable property in Oudh, in circumstances which are fully stated in the judgment of the Judicial Committee.

The main questions for determination in the appeal were two—namely, (1.) whether as to the immovable property in suit a deed executed on March 7, 1884, by Munni Bibi, the widow of a Sunni Mahomedan taluqdar, was to be construed as making a gift inter vivos to Lutf Ullah Khan, or as an intended disposition by will, and (2.) whether, if the deed constituted a gift, possession had been taken of the property so as to satisfy the requirements of Mahomedan law. A further question arose in the Courts below— namely, as to the right which Munni Bibi, as devisee from her husband of a taluqdari estate held by him under a primogeniture sanad, had power to dispose of it by will— was concluded by the decision of the Board in Ghulam Abbas Khan v. Amatul Fatima (( 1921) L. R. 48 I. A. 135.), which decision was given after the judgments below in the present case.

The Subordinate Judge held that the deed of March 7, 1884, was in part a deed of gift, and was effectual so far as regards the property of which possession was delivered thereunder, but that as regards the property in suit it was testamentary, and as such was valid to the extent of one-third only. His conclusion consequently was that the first defendant, as the son and heir of Lutf Ullah, was entitled to one-third and the plaintiffs to two-thirds. He further held that the plaintiffs had not lost their rights by any admissions or consent; and that the defendants 2 to 5 were not transferees for value without notice within s. 41 of the Transfer of Property Act, 1882.

Appeals were thereupon preferred by the defendants 2 and 5 to the Court of the Judicial Commissioner of Oudh, the plaintiffs (the present appellants) preferring cross-objections in which they claimed that the decree should have awarded to them the whole of the property. In the result a decree was passed in the appeal on December 19, 1917, against the plaintiffs, and the cross-objections and the suit were dismissed.

The Judicial Commissioners were not agreed on the questions whether the property other than Gandhia was covered by the primogeniture sanad and whether the deed of March 7, 1884, was in any respect testamentary ; their decision however did not turn on those questions. One of the learned judges considered that the deed was a present gift of the property in question and that it was not invalid for want of delivery of possession. He said, speaking of Munni Bibi, " she covenanted in the deed not to transfer her interests in the property in question during her lifetime, and this stipulation satisfies the conditions of the law with regard to the delivery of possession." The other learned judge did not decide whether the deed was a present gift of the property, but on the assumption that it was he considered that it was complete and valid, notwithstanding that there was no actual delivery of possession. He said " If the property given includes a portion over which the donor wants to retain possession for a definite time, it would be unreasonable to hold that she should deprive herself of the possession of that portion before the gift can be validated. To require her to withdraw her con nection forthwith is to compel her to give more than what she intended to give, or in other words to disqualify her from reserving anything for herself, though it may fall short of proprietary rights. Her possession, so long as the rights so reserved are exercised, is virtually possession on behalf of the owner, for a donor would refuse to accept a gift burdened with such a condi