Emnabai And Ors. vs Hajirabai on 7 December, 1888

Bombay High Court
Emnabai And Ors. vs Hajirabai on 7 December, 1888
Equivalent citations: (1889) ILR 13 Bom 352
Author: C Sargent
Bench: C Sargent, Scott


Charles Sargent, C.J.

1. The question in this case is as to the validity of two deeds of gift executed by the deceased Haji Gazi Ahmed, in favour of his widow, the defendant Hajirabai, on the 25th March, 1871, and 30th May, 1883.

2. The deceased died on the 13th March, 1884. The first deed of gift relates to a house which, at the time of the gift and up to the death of the donor, was occupied by tenants, and its validity is impugned on the ground that the widow was not put into possession as required by Mahomedan law. It is not in dispute that, after this execution of the deed of gift, Haji Gaji continued to collect the rents as before, and that they were entered in his books and drawn upon for family purposes in the same manner as they had always been. But in 1876 the house was transferred into the name of the wife in the municipal books; and in 1877 the fazandari bill was made out in her name. Lastly, in 1881-82 Haji Gazi had an account of the rents of the first house prepared in the name of Hajirabai from 1871-72 up to date. Much reliance was placed by the plaintiffs on the circumstance that the donor had continued to collect the rents as before; but this circumstance in the case of gift from a husband to a wife may be accounted for by the husband (as the person upon whom the task would naturally devolve), collecting the rents as his wife’s manager; and slight evidence to show that such was the case may well, in our opinion, be accepted as sufficient, in a case, like the present, of a formal instrument of gift accompanied by registration. In Amina Bibi v. Khatija Bibi 1 Bom. H.C. Rep. At p. 162, where the gift consisted of a house, in which the parties lived, and a “chal” adjoining the house let to tenants: Sir M. Sausse, C.J., says: “In my opinion, the relation of husband and wife, and his legal right to reside with her and to manage her property, rebut the inference which in the case of parties standing in a different relation would arise from a continued residence in the house after the making of the hiba, and in the husband generally receiving the rents of the ‘chal’ annexed to that house.” In that case Sir M. Sausse considered that the declaration in the hiba itself, the delivery of which was testified to by witnesses, that possession was thereby given of the house and “ckal,” and evidence of the husband having stated” on one occasion that he was collecting the rents on account of the wife, were deemed sufficient proof that the husband was acting as manager in respect of the chal.

4. In the present case we have a formal instrument of gift duly registered, and the transfers in 1876 and 1877 by Haji Gazi of the house in the municipal and fazandari books into the name of his wife afford a satisfactory indication that Haji Gazi regarded his wife as the owner, there being no reason, under the circumstances, for referring the entry of her name as occupant to any other title; from which it may be inferred that he regarded himself as collecting the rents as her manager. Whether this state of things commenced at once after the gift, or only in 1876, is immaterial, as there is no reason to suppose that what occurred in 1876 was not done with Gazi’s consent–a fact which derives corroboration from Haji Gazi, in 1881-82, treating the rents as belonging to his wife and directing an account of them to be taken. We think, therefore, that the validity of the gift of 25th March, 1871, is satisfactorily established.

5. As to the second hiba, the subject of which was an undivided moiety of a house in which Haji Gazi and his wife resided, and to which Haji Gazi and his brother were entitled in equal shares; it was objected that it was invalid as being a gift of a “mooshaa,” or undivided part, in a thing susceptible of partition. The rule of Mahomedan law is stated thus in the Hydaya, Vol. III; p. 293: ” That seisin in cases of gift is expressly ordained, and consequently a complete seisin is a necessary condition; but a complete seisin is impracticable with respect to an indefinite part of divisible things, as it is impossible, in such, to make seisin of the thing given without its conjunction with something that is not given; and that is a defective seisin.” And again the Shurhi Viquaya: “A gift of part of a thing which is capable of division is not valid, unless such part be divided off, so that seisin may be definite and not include anything else.” In Ameeroonissaa Khatoon v. Abadoonissa Khatoon 15 Beng. L.R. 67 L.R 2 Ind. App. 87, at p. 106 it was held by the Privy Council that shares in zamindaris, from the special legislation relating to them and before any partition of the land, were definite estates capable of distinct enjoyment by perception of the separate and defined rents belonging to them, and, therefore, not falling within the principle and reason of the law relating to mushaa.” In Jiwan Bakhsh v. Imtiaz Begam I.L.R. 2. All. 93, in which the last case was referred to, the Allahabad High Court held that a defined share in a landed estate was a separate estate, and not open to the objection which attaches under Mahomedan law to the gift of joint and undivided property. The landed estates in that case were zamindari villages, and the Court said their view was sanctioned by the rulings of the Privy Council–referring, we presume, to the decision of the Privy Council we have already mentioned, as there is none of them, that we are aware of, in which the rule is discussed. In Kasim Husain v. Sharif-un-nissa I.L.R. 5 All. At p. 287 the donor’s gift was of the one-twelfth share in a “muafi” estate, and the Court supported the gift on the ground that a gift of a “specific share is not open to objection under Mahomedan law” -meaning, we apprehend, a share recognized as a separate estate capable of distinct enjoyment. In the Tagore Lectures for 1884 the author refers to these decisions as only applicable to the large landed estates in the North-West of India. The above decisions do not, therefore, touch the present question, viz., whether a gift by the donor of his undivided share in a house, or ordinary lands, not forming part of estates as they are found in Northern India, is open to objection under Mahomedan law. It was said that the rule did not apply, unless the donor retained some share of the property. This objection was taken in Ameeroonissa Khatoon v. Abadoonisa Khatoon 15 Beng. L.R. 67 : L.R. 2 Ind. App 87 already referred to, but not decided by the Privy Council, as it was not necessary, in their view of that case, to consider it. In Case VIII of Macnaghten’s Precedents of Gifts it is assumed that a gift by one of several co-sharers of his share to a stranger is invalid. Alluding to the widow’s gift to the donee, the answer at the bottom of page 204 continues: “A gift even of her own portion (as one of the heirs) is invalid, that being undefined and not admitting of legal seisin.” Again, in the note to Case X, p. 208, the author, after alluding to the supervenient indefiniteness arising from the discovery that the donor was not the sole proprietor, says: “It would have been otherwise had the right of a third person been recognized to exist at the time of the gift, which would in that case have been null and void ab initio.” However in Ameena Bibee v. Zeifa Bibee 3 Calc. W.R. Civ. Rul. 37 it was held, on the authority of Case XIII of Macnaghten’s Precedents of Mahomedan Law. that one of two sharers in lands and houses can give over his share to the other co-sharer even before division; and this ruling was extended by the Privy Council, in Mahomed Baksh v. Hosseini Bibi I.L.R. 15 Calc. 701, to the case of the gift by one of three co-sharers (and, therefore, of any number of co-shares of his share to one of the others, on the ground that not to do so would, in their Lordships’ opinion, be refining on a refinement amounting almost to a reductio ad absurdum. In the present case the object of the gift is an undivided moiety of a house which had admittedly not been partitioned, and the donee is not a co-sharer, but a third person. The case, therefore, is not governed by any of the above judicial decisions, and falls within the rule as interpreted by the cases in Macnaghten’s Precedents and which we think this Court ought to follow. Whether such a gift is void, or only invalid, as to which there would appear to be some difference of opinion between Mahomedan lawyers, is not a question which arises in this case, as there had been no partition, and defendant had not been put into possession of any specific portion of the house as her husband’s share before her husband’s death.

6. We must, therefore, vary the decree by declaring that the deed of gift of 30th May, 1883, is invalid; and by directing that the parties do pay their own costs of the suit and also of this appeal.

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