P D 1997 Supreme Court 730

Present: Ajmal Mian, Saiduzzaman Siddiqui,

Muhammad Bashir Khan Jehangiri, Nasir Aslam Zahid

and Khalil-ur-Rehman Khan, JJ

ABDUL HAMEED and 23 others -Appellants

versus

MUHAMMAD MOHIYUDDIN SIDDIQUE RAJA and 3 others -Respondents

Civil Appeal No. 1083 of 1995, decided on 16th June, 1997

(On appeal from the judgment of Lahore High Court Lahore dated 3-7-1995 passed in

Civil Revision No.2240 of 1990).

(a) Muhammadan Law---

----Gift---Leave to appeal was granted to consider as to whether under Islamic Law gift of

usufruct of immovable property was permissible---Constitution of Pakistan (1973), Art. 185(3).

(b) Muhammadan Law---

7-Gift -Leave to appeal was granted to consider as to whether a gift made by a person to his

issueless wife for life could be construed that it was a gift of immovable property, the condition

of usufruct being void.

(c) Muhammadan Law---

----Gift---Condition attached to gift---Effect---If the corpus of property is gifted then attaching of

any condition derogatory to the gift, i.e., transfer of absolute ownership to the donee is, treated as

void.

Principles of Mohemedan Law by Mullah, para. 164 ref.

(d) Muhammadan Law---

----Gift---Word ---Definition-- means "life grant" and not "life tenancy .--[Words and phrases].

(e) Muhammadan Law---

----Gift---Transfer of property through gift---Validity---Determination---Matter of such transfer

has to be decided in accordance with the Injunctions of Holy Qur'an and Sunnah of the Holy

Prophet.

(f) Muhammadan Law---

Gift---Nature---Determination of---Principles---If the words uttered indicate i.e. making the

other owner of the thing gifted, it will be a gift but if the words indicate making the donee owner

of the usufruct of the thing gifted, then that will be "Ariyat"---If, however, from the words used

both things can be construed in that case decision will base on the intention of the donor---In

each case the intention of the donor will have to be construed for determining the question

whether the gift of corpus of the property was intended to be made or it was only gift of usufruct

of the property.

(g) Muhammadan Law---

----- Gift---Nature---Umra gift---Validity---Intention of. donor---Determination of---Held, in

determining the intention, if the transaction was of the nature of "Umra", that will be a case of

transfer of property absolutely to the donee as the Holy Prophet had disapproved the "Umra" of

the period of Jahlia (pre-Islamic period), and of taking back the property gifted under "Umra"

grants---Whoever is conferred upon a life grant alongwith his descendants is entitled to make use

of the property conferred so long as he lives and his successors also enjoy said privilege---

Property becomes their de facto belonging and donor cannot after declaring Umra lay down any

condition or make any exception for he conferred a grant and as such it becomes heritage, and

right of inheritance abrogated his condition.

(h) Muhammadan Law--

----Gift---Condition attached to gift---Effect---Any condition attached, which is derogatory to the

absolute conveyance of the gifted property is to be treated invalid and thus stands nullified and is

rendered ineffective---If the intention, however, was to grant right of use and enjoyment of the

usufruct then the grant of property made by use of words that "it is for you as long as you will

live" the property will return to its owner after the death of the donees.

(i) Muhammadan Law---

----Gift---Gift of usufruct---Permissibility---Islam recognises, permits and sanctifies the gift of

usufruct.

([) Muhammadan Law---

---- Gift---Umra gift---Any derogatory condition sought to be attached on the Umra gift is void

and not recognised by Islam---Gift of property for life made by a person to any person, who may

be his issueless wife, where intention is to transfer and convey corpus of the property is to be

construed as an outright and absolute gift of property and any condition attached derogatory to

the transfer of corpus in that case would be void.

(k) Muhammadan Law

-..--Gift ---Umra gift---Statement made by donor before Revenue Authorities and Courts clearly

showed that it was the "land itself", the corpus of land which donor gifted in favour of his wife

though he added the condition "till life" therewith and not the mere enjoyment of usufruct

thereof---Such transaction of gift constituted complete gift of the land made by husband in

favour of wife--Disposition of land in question amounted to ' Umra' recognised as one of species

of gift of property under Muslim law.

(1) Muhammadan Law---

---- Gift---Umra gift---Gift of corpus of land---When the declaration of "Umra" is made, it is the

donee who becomes the possessor of the thing donated and it does not revert to the donor, unless

an explicit condition is laid down in regard to it---Words "for life" used clearly indicate that

donor intended to make "Umra" gift---Gift of the corpus of the land as such was complete and

absolute and the condition of "for life" sought to be attached was invalid and ineffective in

circumstances.

(m) Muhammadan Law---

----Gift---If the corpus is gifted and conditions are attached to it, the gift is treated as complete

and absolute for ever and conditions are held to be null and ,void.

(n) Muhammadan Law---

----Gift---Umra gift ---Umra gift is a complete gift and condition derogatory to the absoluteness

of the gift ,is invalid, and the property so gifted does not revert to the donor after the life of the

donee.

Principles of Mahomedan Law by Mulla, para. 164; Mst. Khan Bibi v. Mst. Safia Begum

and others PLD 1969 Lah. 338; Balugh-al-Maram, Hadith No.793 compiled by Al-Hafiz Ion

Hajar Al-Asqalani, published with English Translation by Dar-us-Salam Publications, Riyadh,

Saudi Arabia; Sahih Muslim by Abdul Hamid Siddiqi, Traditions Nos.3975, 3980, Chap.

DCXLV, Vo1.III, pp. 860 to 862; Vol. III, pp. 598 to 606, 607 to 609 by Manzo'or Ahsan

Abbasi, Vol. III, pp.344, 346, 347; Nawab Umjad Ally Khan v. Mst. Mohumdee Begum 1867

Mors. IA 517; Mst. Kaneez Bibi v. Sher Muhammad PLD 1991 SC 466; Fatawa Alamgiri by

Allama Maulana Syed Amir Ali, Vol. VII, pp.72-73; Farid v. Nur Bibi PLD 1970 Lab. 502;

Additional Settlement Commissioner (Land), Sargodha v. Muhammad Shafi and others PLD

1971 SC 791; The State v. Ziaur-Rehman and others PLD 1973 SC 49; Al-Jehad Trust through

Raeesul Mujahideen Habib-ul-Wahab-ul-Khairi and others v. Federation of Pakistan and others

PLD 1996 SC 324; Hedaya by Charles Hamilton, 1975 Edn., pp.488489; compiled by

Muhammad Bin Ali Bin Muhammad AI-Shokani, Vol. VI, pp. 16 to 18; Subul-us-Salam by

Muhammad bin Ismail As-Sanani a Commentary on Bulugh Al-Maram, Vo1.III, pp.91-92; Al-

Mughni by Abi Muhammad Abdullah bin Ahmad bin Muhammad bin Kadama, Vol. V, pp.686

to 692; by Allama Abubakar Alauddin Al-Kasani; Amjad Khan v. As raf Khan AIR 1925 Oudh

568; Amjad Khan v. Ashraf Khan and others AIR 1929 PC 149; Nawazish Ali Khan v. Ali Raza

Khan AIR 1948 PC 134; Fateh Muhammad v. Nathu 1982 CLC 2082; Mst. Bibi Alam Taj and

others v. Mst. Inayat Begum PLD 1963 Pesh. 199; Sar Anjam Khan v. Afzal Khan PLD 1972'

Pesh. 37 and Said Akbar and others v. Mst. Kakai PLD 1975 SC 377 ref.

Malik Muhammad Nawaz, Advocate instructed by Tanvir Ahmad Advocate-on-Record

(absent) for Appellants.

S.M. Zafar, Senior Advocate, S. Zahid Hussain, Advocate instructed by Khan Imtiaz

Muhammad Khan, Advocate-on-Record for Respondents Nos. l to 3.

Respondent No.4: Ex parte

Dates of hearing: 24th and 25th March, 1997

JUDGMENT

KHALIL-UR-REHMAN KHAN, J.--This appeal by leave of the Court is directed against the

judgment dated 3-7-1995 of the Lahore .High Court, Lahore, whereby the revision petition of

the appellants was dismissed and thus the judgments of the learned Courts below dismissing

the suit of the appellants/plaintiffs for declaration to the effect that the one square of land

(described in the plaint) which was given to Mst. Karam Noor for life or till remarriage vide

Mutation No. 34 dated 15-3-1949 (wrongly described as 15-9-1949) is in their possession,

use and ownership as per their respective shares being legal heirs of Jatnal Din son of

Makhan Khan and that the defendant have no right to or concern with the said land except to

the extent of the share which Mst Karam Nor is entitled to taccive as a widow and so the right of

defendants extends to 1/8th share only; and the Mutation of Inheritance No.64 dated 15-1-

1987, appellate order of Assistant Commissioner, Gojra dated 18-3-1987 declaring Mst.

Karam Noor as exclusive owner of the said land and the entries incorporated in Revenue

Record after Jamabandi for the year 1949 are invalid and ineffective in law and are liable

to be cancelled; and for permanent mandatory injunction restraining the defendants Nos.l

to 3 to interfere in ownership and possession of the plaintiffs and in having the entries of

the Revenue Record corrected, were upheld.

2. Leave to appeal was granted on 15-11-1995 to consider the following question of

law:--

()) Whether under the Islamic, Law gift of usufruct of immovable property is

permissible?

' (ii) Whether a gift made by a person to his issueless wife for life could be construed that it

was a gift of immovable property, the condition of usufruct being void"?

3. The facts forming background of the controversy subject-matter of the appeal are

that Jatnal Dtri. predecessut-in-interest of the parties was owner of 1(5 squares of land; eight

square. in District Toba Tek Singh, and eight squares in the District of Khair Pur Sind1t. He

had three wives, namely Mst. Fateh Begum, Sardar Begum and Karam Noor. From Mst.

Fateh Begum, he had one son namely Abdul hztz while from Mst. Sardar Begum he had three

issues ttantely. Fazal-e-Hussain, Kataz Fatima and ivist. Aziz, Fatima. Mst. Karam Noor had

no issue,

4. On 25-6-1948, Jamal Dili appealed before the Patwari Halqa and reported to him three

transactions pertaining to his land on the basis of which Mutations. Nos.33, 34 and. 35 were

entered by the Patwari in the Mutation Register. the statements recorded in respect of each

transaction read as under:--

Mutation No.33 (in favour of Abdul Aziz):

Mutation No 34 (in favour of Mst. Karam Noor):

Mutation No 35 (in favour of Fazal-e-Hussain):

These three Mutations came up before the Revenue Officer on 4-7-1948 and the order

recorded on each of these Mutations reads as under:--

Mutation Nv.33:

Mutation No -34:

These mutations came up before the Revenue Officer on 15-3-1949 and were sanctioned by

recording the appropriate orders in each case. These orders read as under:--

Mutation No.33:

Mutation No.34:

Mutation No.35:

4. It is pertinent to note that Sardar Begum and Fateh Begum, the two other wives, had

already died when the land in dispute was got mutated in the name of Mst. Karam Noor. Jamal

Din died on 11-4-1949. Mst. Karam Noor died on 24-4-1985 and the plaintiffs were given their

Sharaee share in the land in dispute while the defendants Nos.l to 3 were given 1/8th share of the

land as heirs of Mst. Karam Noor widow. The defendants/respondents challenged the order of

mutation by filing an appeal before the Assistant Commissioner, Gojra who remanded the matter

to the Tehsildar and ultimately, vide Mutation No.674 dated 15-1-1987 the land in dispute was

mutated in favour of defendants Nos.l to 3, the heirs of Mst. Karam Noor treating her as

exclusive owner of the land in dispute. The appeal filed by the appellants was dismissed on 18-3-

1987 with the observations that the aggrieved party may approach the Civil Court. for.

declaration of their claimed right. This led to the filing of the suit for declaration and permanent

injunction by the plaintiffs/appellants for seeking declaration as indicated above. It may be added

here that Sultan Mahmood respondent No.4 who is son of Abdul Aziz did not join the plaintiffs

(his mother, brothers and sisters as well as heirs of Mst. Sardar Begum, the third wife of Jamal

Din) and as such he was arrayed as defendant No.4 in the array of defendants alongwith the

reversioners of Mst. Karam Noor, defendants Nos. l to 3. The suit was resisted by the defendants

by raising preliminary objections that the suit was barred by time; Civil Court had no jurisdiction

to try the suit which was otherwise not maintainable in its present form; the plaintiffs are

estopped to file this suit by their conduct and record; the suit was bad for non joinder of

necessary parties. It was also pleaded that Mst. Karam Noor was a full owner in her lifetime and

that the plaintiffs had been admitting her as such because Jamal Din had gifted away the land in

favour of Mst. Karam Noor and any condition on the gift is void.

5. The learned trial Court after framing the necessary issues and recording the evidence produced

by the parties dismissed the suit vide judgment and decree dated 21-5-1989 finding Issues Nos.6

and 9 in favour of the defendants and against the plaintiffs. These issues (Issues Nos.6 and 9) are

being reproduced as in the present context other issues are not relevant:--

Issue No. 6;

"Whether Mst. Karam Noor deceased was full owner of the land in dispute and the plaintiffs had

been admitting the status of deceased? If so, what is its effect on this suit? OPD. "

Issue No.9:

"Whether Mst. Karam Noor was limited owner and plaintiffs are entitled to get the suit land

as heir of last male owner jamal Din and Mutation No.674 sanctioned by order dated 15-1-1987

by Tehsildar and by order dated 18-3-1987 passed by A.C., Gojra and entries in the Revenue

record and Jamabandis after 1949 are illegal, void and liable to be set aside? OPP. "

6. -Documentary evidence which mainly consists of copies of the Revenue Record is of

importance. The oral evidence consists of the statements of Patwari produced by each of the

parties and the statements of one of the plaintiffs and the defendants. Learned trial Court held

under Issue No.9 that the nature of transfer of suit land in the name of Mst Karam Noor was a

"Tamleek" which undoubtedly is considered a gift under the Mahomedan Law, therefore, any

condition attached to such a Tamleeknama" is void and "Tamleek" is valid Learned District

Judge Toba Tek Singh dismissed the appeal vide judgment dated 4-6-1990 agreeing with the

view of the learned trial Court relying on

paragraph 164 of the Principles of Mahomedan Law by Mullah. It was also noted that entries in

Jamabandis from 1953-54 to 1981-81, Exhs.o.1, D.4, D.S. 13.6 and D.7 indicate that Mst. Karam

Noor was full owner. The plea of the appellants appearing in the statement of Muhammad Ashraf

P.W.2, that Karam Noor had distributed the disputed land amongst the legal heirs of Jamal Din,

during her lifetime and they were in cultivating possession, in view of the above entries, it was

observed, is not believable, The judgment of the first appellate Court was then assailed by filing

Revision Petition in the High Court and the same was also dismissed by a learned Single Judge

of the Lahore High Court vide judgment dated 3-7-1995 by recording the conclusion that Jwnal

Din made transfer of corpus of property in dispute to Mst Karam Noor and that he (Jamal Din)

made gift of the corpus of property and not gift of its usufruct. Learned Judge, after noting the

precedents, which will be noticed Thereunder, was of the view that the gift made was valid and

condition embodied in Mutation was null and void.

7. Malik Muhammad Nawaz, Advocate,, learned counsel for the appellants contended that

Muslim Law contemplates gift of corpus as well as of usufruct of property and answer to the

question, whether in a given case gift is of corpus of property or of usufruct of the property, is to

be found by ascertaining the intention of the donor from the document of gift or the statement

made, if any, or the circumstances surrounding the grant of the property. He, however, conceded

that the principle is well-established that if the corpus of property is gifted then attaching of any

condition derogatory to the gift i.e. transfer of absolute ownership to the donee, is treated as void.

He referred to paragraph 164 of Mahomedan Law by Sir D.F: Mulla wherein this principle of

Muslim Law is stated as under:--

"Gift with a condition.--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.

Learned counsel contended that the statements of Jamal Din (donor) contained in the report of

the Patwari dated 25th June, 1948 and the proceedings of Revenue Officer dated 4-7-1948 show

that land in dispute was given to Mst. Karam Noor for maintenance during her life only and this

intention to gift usufruct of the land and not the land itself is manifest. He added that the donor

used the words given for life i.e., "till she lives" in the first statement, and in the second

statement before Revenue Officer he (Jamal Din, the donor) made intention explicit by adding

the .word maintenance. According to him, these words are not used by a donor whose intention

is to gift corpus of the property.

8. Learned counsel, on the above premises argued that the judgments referred to by the learned

Judge in the impugned judgment are distinguishable and that the wrong approach has led to the

recording of wrong conclusion. He relied on the case of Mst. Khan Bibi (PLD 1969 Lah. 338)

and stated that the ratio of this precedent fully applies to the instant case. According to him, the

principles of Muslim Law on the question of Hiba and Ariat have been fully and lucidly stated in

this judgment. He also referred to the Tradition (Hadith No.793) quoted in Bulugh-al-Maram

compiled by Al-Hafiz Ibn Hajar AI-Asqalani, published with English Translation by Dar-us-

Salam Publications, Riyadh, Saudi Arabia. Hadith 793 reads:--

Translation

"Narrated Jabir Allah's Messenger (PBUH) said, 'What is given in life-tenancy belongs to the

one to whom it is given' (Agreed upon).

Muslim has: 'Keep your properties for yourselves and do not squander them, for it anyone

gives a life-tenancy it goes to the one to whom it is given, both during his life and after his death,

and to his descendants.

A version has: 'The life-tenancy which Allah's Messenger ( PBUH ) allowed was only

that in which one says, ' It is for you and your descendants' When he says, 'It is yours as long as

you live', it returns to its owner.

Abu Da'ud and An-Nasa'i have: 'Do not give property to go to the survivor and do not

give life-tenancy, for if anyone is given either, the property goes to his heirs. "

It may be pointed out that the word has been translated as 'life-tenancy' in the English

version by the translator which is misleading, as means 'life grant'. This word is so translated in

the English version of 'Sahih Muslim', by Abdul Hamid Siddiqi. The definition of "(£ I " given

by the jurist-consults also supports the translation of " CS3-6-IJ f " in paras. below, as 'life grant'.

Likewise, the translation of the words 'a version has', as well as 'life tenancy' used while

translating the tradition (Hadith) is misleading and does not depict the true meaning. The prefix

'a version has' is misleading as if there is another version of the same Hadith (Tradition) quoted

above. These traditions have . been quoted as Traditions Nos.3975 and 3980 in Sahih Muslim in

Chapter DCXLV 'Al-Umra (Life Grant)' to Volume III (translation by Abdul Hamid Siddiqi).

Learned counsel also relied on the comments contained in the Book Volume III at pages

598 to 606 in Chapter "Kitab-ul-Aiiat" and at pages 607 to 609 to Chapter 'Kitab-ul-Hiba', to

point out the distinction between Hiba Umra and Ariat He also referred to Urdu translation by

Manzoor Ahsan Abbasi of Volume III, pages 344, 346 and 347 for discussion on the concept of

Ariat. The concept of 'Umra' has been discussed at page-394 as under:--

'Riqba' has also been defined at the same page as under:--

10. Mr. S.M. Zafar, Senior Advocate, learned counsel for the respondents on the other hand

argued that instant case is a case of transfer of corpus of property and the words are to be

treated according to the well established principles of Shariah to be ineffective and void as any

condition sought to be attached by the donor which is derogatory to the passing of the exclusive

ownership in the donee is treated as void. The gift made remains valid and the condition is

ignored. Learned counsel relied on the cases relied upon by the learned Judge in the impugned

judgment particularly, the Privy Council case Nawab Umjad Ally Khan v. Mst. Mohumdee

Begum (1867 Moors. IA 517) and the judgment of the Supreme Court in the case of Mst.

Kaneez Bibi (PLD 1991 SC 466). He pointed out that in this case as well, a reference to the

mutation No-34 shows that Mb. Karam Noor was recorded as owner in Column of ownership in

substitution of Jamal Din donor recorded in column No.3. The new situation so obtaining and

the transfer of possession so admitted by producing Mst. Karam Noor the donee, coupled with

the use of word " would show that the conveyance of the land described in the statement was

absolute transfer of the corpus of the land and not a mere permission to receive usufruct of the

land for or during life. He added that the words before the words cannot be construed to mean

"Ariyat". According to him, this was gift and as such the words are to. be ignored as ineffective

in law. He added that even if Jamal Din donor intended to allow a life grant then according to

the Traditions of the Holy Prophet (p.b.u.h.) and the instance/decision quoted at page 345 of the

judgment of Lahore High Court in the case of Mst. Khan Bibi (supra), the condition has to be

treated as invalid and the "Hiba" is to be treated "Umra" ailo on the death of the donee the

property is to pass on to the descendent of the donee ants is nut to revert to the 'descendants of

the donor. Learned counsel for the respondents argued that in this view of the matter, no

justifiable exception can be taken to the concurrent judgments of the three learned Courts below.

. 11. Learned counsel for the respondents also referred to the comments appearing on pages 72

and 73 of the "Fatawa Alamgiri" Volume VII which is translated by Allama Maulana Syed Amir

Ali. It read as under:--

Learned counsel also referred to paragraph 5 of the judgment in the case -of Mst. Khan Bibi

(supra), wherein difference in the concept of gift and Ariat has been highlighted.

12. We have given serious consideration to the contentions urged by the learned counsel for

the parties and have gone through the case-law on the subject. In view of the observations of this

Court recorded in the case of Mst. Kaneez Bibi (PLD 1991 SC 466) as to the view taken by him,

(Mr. Justice Muhammad Afzal Zullah) in the case of Farid (PLD 1970 Lahore 502) it appears

appropriate to notice the main features of the new constitutional dispensation referred to in the

said judgment. It will be recalled that soon after independence of the country, the West Punjab

Muslim Personal Law (Shariat) Application Act, 1948 (Punjab Act IX of 1948) was enforced on

15th March, 1948. The rule of Custom or usage in all questions regarding succession, special

property of females and gifts etc. was done away with and even in respect of immovable

property held by a Muslim female as a limited owner under the Customary Law, it was provided

that succession shall be deemed to open out on the termination of her limited interest to all

persons who would have been entitled to inherit the property at the time of the death of the last

full owner had the Muslim Personal Law (Shariat) been applicable at the time of such death. This

law was then amended from time to time and then Muslim Personal Law (Shariat) Application

Act, 1962 terminated all limited estates under the Customary Law. The limited estates of females

under Customary Law contains concept different and distinct from the life-grant (Umra) or grant

of usufruct envisaged in Muslim Law. For understanding the concepts of widows' estate under

Custom, reference may be made to Additional Settlement Commissioner (Land), Sargodha v.

Muhammad Shafi and others (PLD 1971 SC 791) wherein Mr. Justice Hamoodur Rehman, the

then Chief Justice, very lucidly described the position of widow's estate under Custom which

was analogous in nature to a widow's estate under Hindu Law according to which she notionally

represents her husband as if her deceased husband is, for the purposes of the management and

user of his properties, kept alive in her, and it is for this reason that it is said that during the time

the widow if alive or does not remarry, the whole estate of her husband vests in her absolutely as

if the husband is for all intents and purposes alive in her and at her death the estate reverts to the

heirs of the last male owner and she never becomes a fresh stock of descent.

13. It will further be recalled that Objectives Resolution was passed by the constituent assembly

in 1949, wherein. the ideals to be achieved by the nation were declared. The Objectives

Resolution formed Preamble of every Constitution of Pakistan adopted and enacted from time to

time. This Court in the State v. Zia-ur-Rahman and others (PLD 1973 S.C. 49) with reference to

the Objectives Resolution declared that the "Objectives Resolution of 1949, even though it is a

document which has been generally accepted-and has never been repealed/renounced, will not

have the same status or authority as the Constitution itself until it is incorporated within it or

made part of it". The Objectives Resolution was then made substantive part of the Constitution

of the Islamic Republic of Pakistan, 1973 by adding Article 2A. The Objectives Resolution thus

became substantive part of the Constitution and the effect of the same was noted in the Al-Jehad

Trust through Raeesul Mujahideen Habib-ulWahab-ul-Khairi and others v. Federation of

Pakistan and others (PLD 1996 SC 24) by making the following observations by the Honourable

Chief Justice, Sajjad Ali Shah:--

"As stated in the short order, if we look at the Constitution of 1973, we find that the title is "The

Constitution of Islamic Republic of Pakistan" and Article 2 thereof commands that Islam is to be

its State religion. Preamble to the Constitution says that the principles of democracy, freedom,

equality, tolerance and social justice as enunciated by Islam shall be fully observed and

independence of judiciary fully secured. Objectives resolution as reproduced in the Preamble has

been made a substantive part of the Constitution by Article 2A inserted by P.O No. 14 of 1985.

Part IX of the Constitution contains Islamic provisions in which Article 227 envisages that all

existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the

Holy Qur'an and Sunnah."

Manzoor Hussain Sial, J. observed as under:--

"At this juncture, I may point out that the principles and provisions set out in the Objectives

Resolution now form substantive part of the Constitution, wherein it is categorically provided

that independence of Judiciary shall be 'fully secure as also Article 227 of the Constitution

mandates that all existing laws are shall be brought in conformity with the Injunctions of Islam

as laid down in the Holy Qur'an and Sunnah'. Ajmal Mian, J., further observed at page 478 that

principles of Islamic Jurisprudence will have to be invoked while: construing the provisions of

Constitution. It is, therefore, the necessity that these very principles are invoked in the

construction of the Laws and the instruments. Article 227 of the Constitution further provides

that all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in

the Holy Qur'an and Sunnah, and no law shall be enacted which is repugnant to the Injunctions

of Islam.

14. Reference at this stage may also lie made to the "Enforcement of Shariah Act, 1991 " (Act

X of 1991) section 4. of which provides that "while interpreting the statute-law, if more than one

interpretation is possible. the one consistent with the Islamic Principles and jurisprudence shall

be adopted by the Court". Thus, the Constitutional mandate as well as legal requirement of the

Enforcement of Shariah Act, 1991 and the Muslim Personal Law (shariat) Application Act is that

the matter of transfer of property through gift is to be decided in accordance with the Injunctions

of Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.).

15. We, therefore, proceed to examine the two legal questions raised in the leave granting order

in the light of the Traditions of the Holy Prophet as interpreted and propounded by the Muslim

jurists in respect of which admittedly there exists no difference of opinion amongst the different

schools of thought. The Traditions noted in Sahih Muslim (English Translation by Mr. Abdul

Hamid Siddiqi) in Volume III, Chapter DCXLV - Al-Umra (Life Grant) at page 860 to 862, read

as follows:--

"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 lit grant upon a 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 lifelong 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.

3974. Jabir b. 'Abdullah Al-Ansari (Allah be pleased with him) said: Allah's Messenger (may

peace be upon him) said: Whoever a person conferred 'Umra' (Life grant) upon a person and

he says: I confer upon you this and upon your descendants and anyone who survives you,

and that becomes his possession and that of his posterity. It would become (a permanent

possession) of those who were conferred upon this gift, and it would not return to its owner

(donor), for he gave that as a gift in which accrued the right of inheritance

3975. Jabir b. 'Abduliah (Allah be pleased with him) said: The 'Umra' for which Allah's

Messenger (may peace be upon him) gave sanction that a person may say: This (property) is

for you and for your descendants. And when he said that is for you as long as you live, then

it will return to its owner (after the death of the donee Ma'mar said: Zuhri used to give

religious verdict according to this

3976. Jabir b. 'Atdullah (Allah be pleased with them) reported that Allah's Messenger (may

peace be upon him) commanded that whoever is conferred upon a life grant alongwith his

descendants is entitled to make use of the property conferred so long as he lives and his

successors (also enjoy. this privilege). That (Property) becomes their de facto belonging. The

donor cannot (after declaring Umra) lay down any condition or make any exception. Abu

Salama said : For he conferred a grant and as such it becomes heritage, and the right of

inheritance abrogated his condition.

3977. Jabir b. 'Abdullah (Allah _ be:, pleased with him) reported Allah's messenger.(may peace

be upon him) as saying: Life grant is for one upon. whom it is bestowed. '.

3978: Jabir b. 'Abdullah reported a Hadith like:this through another chain of transmitters.

3979. Jabir reported this Hadith directly from Allah's Apostle (may peace be upon him)

3980. Jabir b. 'Abdullah (Allah be .pleased with him) reported Allah's Messenger (may peace be

upon him) having said: Keep your property, to yourselves and do not squander it, for he who

conferred a life grant upon another that property will belong to him upon whom it is

conferred whether he lives or dies, and (would pass on) to . his successors (as heritage).

3.981. This Hadith is narrated on the authority of Jabir through other chains of transmitters, but

(with this addition of words) that the Hadith transmitted on the authority of Ayyub (these

words are found): "The Helpers (Ansar) conferred the benefit of 'Umra' upon the Emigrants

(Muhajirin), whereupon Allah's Messenger (may peace be upon him) said: Keep your

property to yourselves. -

3982: Jabir b. 'Abdullah (Allah, be pleased with him) reported that a woman gave her garden as a

life grant to her son. He died and later on she also died and left a son behind -and brothers

also. The sons of the woman making life .grant said (to those who had been conferred upon

this Umra). This garden has returned to the sons of the one who had been given life grant

said: This belonged to, our father, during his lifetime and in case of his death. They took

their dispute to Tairq, the freed salve -of 'Uthunat, He called Jabir and he gave testimony of

Allah's Messenger (may peace be upon him) having said: Life grant belongs to one who is

conferred upon this (privilege). Tariq gave this decision and then wrote to 'Abd al-Malik and

informed him. Jabir bearing witness to it 'Abd al-Malik said: Jabir has told the truth. Then

Tariq gave a decree and , as a result thereof, it is to this day that the garden belongs to

descendants of one who was conferred upon the life grant. - F

3983. Sulaiman b. Yasar reported that Jabir gave this verdict. The inheritor has a right (to inherit)

the life grant according to the statement of Jabir b. 'Abdullah (Allah be. pleased with him)

which he narrated from Allah's Messenger (may peace be upon him.)

3984. Jabir b. 'Abdullah reported Allah's Apostle (may peace be upon him) . as saying : Life

grant is permissible.

3985. Jabir b. 'Abdullah (Allah' be pleased with them) reported Allah's Apostle (may peace be

upon him) as saying: Life.grant.is the heritage of one upon -whom it is conferred.

3986. Abu Huraira (Allah be pleased with him) reported Allah's Apostle (may peace be upon

him) As saying: Life grant is permissible:

This Hadith is narrated on the authority of ,Qatada with same chain of transmitters. "

Footnotes 2057 and 2059 being instructive , and_ illustrative are, being reproduced:--

"2057. Al-Umra.--This is a form of giving a gift and is based .upon the Arabic word 'Umra (life).

The declaration of this gift is made thus: I give you this house as a gift and you are fully

authorised to make use of it as long as you live.' Al-Umra has, according to jurists, these forms:

(a) The donor may say: I give you this house for use so long as you live, and when you die it

may pass on to your heirs. This form of ' Umra is like that of gift (Hiba) and the inheritors of

the donee are entitled to their shares in it and it will not go back to the donor.

(b) The donor says: I give you this house for use so long as you live or make .use of it. In this

case the gift would automatically revert to the donor or his heirs at the death of- the. donee

or when he abandons his possession of it.

Imam Shaukani observes: ,"An overwhelming majority of the jurists is of the opinion that

when the declaration of 'Umra is made, it is the donee who becomes the possessor of the thing

donated and it does not revert to the donor, unless an explicit condition is laid down. in regard to

it" (Nail ul-Autar, Vol. VI, p.16). This condition, according to the Hanafi school of thought, is

not valid as -we find in Hidaya.

Ruqba is a generic name fur all limited estates. It includes both 'Umra (life grant) and

Sukna (right of use). "

2059. (Footnotr to Tradition No.3986): There seems to be an apparent contradiction

between these and the former Ahadith but it can be resolved if we take them to signify two

different kinds of grants:--

(a) if the usufruct (and not the corpus) of property is transferred for life, it is valid and

permissible for the life of the grantee;

(b) if the corpus is gifted and conditions are attached to it, the gift will be complete and absolute

for ever and the conditions would be null and void."

.

16. In fact there is no contradiction or conflict between the two Traditions as each applies to

different situation; the one dealing with "Umra" (Gift)

pertaining to corpus of the property and the other to the usufruct of the property, as ownership in

the' corpus remains with the donor. To same effect are the comments contained in the "Hedaya"

by Charles Hamilton 1975 Edn. at pages 488 and 489:--

"If a person makes a gift of 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

cite charity give him something in exchange for part of the house,--such gift or charity, is valid;

but the condition annexed is invalid, because it is contrary to the spirit or intendment of the

contract; and neither gifts not 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 beers already demonstrated..

If one person say to another, 'my house is yours by way of Rikba,' it is null, according to Haneefa

and Muhammad. Aboo Yoosaf has said that it is valid, because his declaration 'my house is

yours,' is a conveyance of the house; and the condition of Rikba is invalid; because the meaning

of this phrase is 'if I die before you then my house is yours,'--that is to say, he waits in

expectation of the other's death, that-the house may revert to himself: --Rikba, therefore,

resembles Amree.--The arguments of Haneefa and Muhammad upon this point are twofold,--

First, the Prophet has legalised Amree and annulled Rikba. -Secondly, the meaning of 'my house

is yours by way of Rikba,' is 'if I die before you, my house is yours,' which is a suspension of the

conveyance of property upon the decease of the donor previous to that of the donee: and this is a

matter of doubt and uncertainty, and consequently null.--It is to be observed that Rikba is derived

from In-tikab, which means expectation; for the donor is, as it were an expectant of the death of

the donee. " ,

17. A discussion on the subject of "Hiba". "Umra" and "Rikba" in " which is and compiled

by Muhammad bin Ali bin Muhammad Al-Shokani in Volume VI at pages 16, 17 and 18 is also

to the same effect. Relevant discussion (Urdu translation) is being, reproduced:

The comments contained in the Fatawa Alamgiri, Volume VII on the question of gift and Ariyat

have already been noted above. These are to the . same effect that if the Words uttered negate i.e

making the other owner of the thing gifted, it will be a gift but if the words indicate making the

donee owner off the usufruct of the thing gifted, then it will be "Ariyat" and if from the words

used both things can be construed, in that case decision will base on the intention of the donor. It

is so stated in Mustafa Sharha Nafai (page 73 of the Fatawa Alamgiri, Volume V11) Thus. as

pointed out in the case of Mst. Khan Bibi (PLD 1969 Lahore 338) by late Justice K.E. Chauhan.

to each case the intention of the donor will have to be construed for determining the question

whether the gift of corpus of the property was intended to be made or it was only gift of usufruct

of the property. In view of the principles noted from afore noted treatises in determining the

intention is of the nature of "Umra", it will he a case of transfer of property absolutely to the

donee as the Holy Prophet (PBUH) had disapproved the "Umra" of the period of Jahlia (,pre-

Islamic period), and of taking back the property gifted under "Umra" grants. The Holy Prophet

(p.b.u.h.), according to the Tradition narrated by Jabir bin ' Abdullah commanded that "whoever

conferred upon a life grant alongwith his descendants is entitled to make use of the property

conferred so long as he lives and his successors (also enjoy this privilege), that (property)

becomes their de facto belonging. The donor cannot (after declaring "Umra") lay down any

condition or make any exception. Abu Salarna said: For he conferred a grant and as such it

becomes heritage; and the right of inheritance abrogated his condition" The rule propounded by

all schools of thought, therefore, is that any condition attached. which is derogatory to the

absolute conveyance of the gifted property is to be treated invalid and thus stands nullified and is

rendered ineffective. But if the intention was to grant right of use and enjoyment of the usufruct

then again on the basis of the Tradition of the Holy Prophet (No. 3975), the grant of property

made by use of words that it is for you as long as you will live, then the property will return to its

owner after the death of the donee.

21. The case-law on the subject may now be analysed with a view to examine the approach

of the Privy Council and the Courts in the sub-continent to the aforenoted views of the

Muslim jurists. The question came up for consideration before the Privy Council in Nawab

Umjad Ally Khan v. Mussumat Mohumdee Begum and otnerN (1867 Mooteb tndiau Appeals

Cases 517). In this case, a gift inter vivos of Government Promissory Notes, negotiable

securities, by a father to his only son (Mahomedam of the Sheah Sect), accompanied by

delivery of possession, and a transfer into the son's name, without arty reservation of the

dominion over the corpus by the donor, though there was stipulation for the right to the

accruing interest on the notes during the donor's life, to be applied by him to certain religious

and charitable purposes, was held to be a valid gift. It was held that this arrangement creates a

trust on the donee to pay the interest to the donor during his life. The pertinent observations

recorded on pages 543 and 544 read as follows:--

"The first in order of these matters involves an important point of Mahomedan Law relating to

gifts, inter vivos.

If the gift be sustained as a valid gift, inter vivos, it will. be unnecessary to review the evidence

as to the genuineness of certain documents propounded by the appellant, anti said to constitute a

valid testament by the Mahomedan Law, or to consider, in any way the validity or effect of those

documents.

The effect of the non-assent of co-heirs to a bequest to an heir by a Mahomedan of the Sheah

Sect becomes also immaterial as a subject of inquiry here, if the gift be valid as gift inter vivos.

Before the validity of this gift, as one inter vivos, is determined, it must first be considered by

their Lordships what the real nature of the transfer was. The legal title in the promissory notes

was undoubtedly in the appellant, in his father's lifetime, by virtue of an act of the father.

But though the transfer of a legal title will satisfy that provision of the Mahomedan Law which

relate to the point of seizin, in its legal and technical sense, yet that alone will not suffice where

no intention exists to transfer the beneficial ownership, either present or future. The facts relating

to the gift have been most carefully investigated by Mr. Fraser, the Civil Judge. The Judicial

Commissioner, paying a just tribute of commendation to Mr. Fraser on his accurate investigation

of the facts, expresses no dissent from his conclusion as to them, but reverses his decision as to

this gift erroneous in point of law. Mr. Fraser's observations as to the mode of dealing amongst

Natives living amongst themselves as a family, in a state of family union, and dealing in this

state with the proceeds of property standing in the names of separate members of the. family, to

whom it has been transferred by the parent and heat of the family, and on the deference to his

wishes and arrangements, and acquiescence in them commonly exhibited, are forcible as

arguments to exclude the motion of fraudulent concealment or design in a transfer circumstanced

as the present. They strengthen the probability of an intended transfer of property in the lifetime

of the donor, with a reservation of the use or proceeds of the money transferred during the

lifetime of the donor only." .

Again at page 547 the observations recorded read as under:--

"It remains to be considered whether a real transfer of property by a donor in his lifetime under

the Mahomedan Law, reserving not the dominion over the corpus of tire; property, nor any share

of dominion over the corpus, but simply stipulating for acid obtaining a right to the recurring

produce during his lifetime, is an incomplete gift by the Mahomedan Law. The text of the

Hedaya seems to include the very proposition and to negative it, The thing to be returned is not

identical, but something different. See Hedays. tit "Gifts." Vol-III, Book XXX, p.294 where the

objection being raised was a participation of property in the thing given invalidates a gift, the

answer is "The donor is subjected to a participation in a thing which is not the subject of his

grant, namely, the use of the whole indivisible article for his gift related to the substance of the

article, not to the use of it". Again, if the agreement for the reservation of the interest to the

father for his life be treated as a repugnant condition, repugnant to the whole enjoyment by the

donee, here the Mahomedan Law defeats not the grant, but the condition. Hedaya, tit "Gifts,"

Vol. III, Book XXXp.307. But as this arrangement between the father and the son is founded on

a valid consideration, the sons undertaking is valid, and could be enforced against him in the

Courts of India as an agreement raising a trust, and constituting a valid obligation to make a

return of the proceeds during the time stipulated. The intention of the parties, therefore, is not

found to violate any provision of the Hedaya, and the transfer is complete."

22. Wazir Hasan, learned A.J.C. in Amjad Khan v. Ashraf Khan and others (AIR 1925 Oudh

568) noted the cases decided by the Privy Council till then and examined the doctrine accepted

by Hanafi lawyers that a gift to 'A' for life conferred absolute interest on ' A' after examining

appropriate text and relevant decisions of the Privy Council, learned A.J.C. pointed out the

distinction in Muslim Law between corpus and the usufruct i.e. between the things itself and

the use of the things. On the construction of the deed which was in question in the case before

him, he came to the conclusion that the donor intended to confer upon his wife not the corpus

but a life interest only and that such life interest could take effect as a gift of the use of the

property and not 'as part of the property itself and that there was nothing in Muslim Law

which compelled him to hold that the intended gift of a life estate conferred an absolute interest

on the donee. Operative part of the deed in this case read as follows:--

"I, therefore ... ... have made a gift without consideration of my entire property detailed below ...

... without the exception of any right or part to my wife Mst. Waziran ... ... subject to the

condition that out of .the entire property mentioned in the deed of, gift she shall remain in

possession of shares worth Rs.5,000 with power to make at her pleasure any sort of alienation

like mortgage, sale or gift in respect thereof and that, as to the rest, worth Rs.10,000, she shall

not possess any power of alienation but she shall remain in possession thereof for her lifetime.

After the death of the donee the entire property gifted ... ... shall revert to the donor's collaterals,

viz ... ... Ashraf Khan, Basharat Khan and their heirs, in equal shares, and those heirs of mine

shall become owners with full proprietary powers and the own heirs of the donee lady shall not

inherit the same and the donee and my aforesaid heirs have accordingly agreed and consented to

this. I have put the lady donee in possession of the property, gifted to her, and therefore from

today I have ceased to possess any right or claim in respect of the gifted property and my wife,

Mt. Waziran, from today became owner and possessor of the aforesaid property in accordance

with the terms of this deed."

The motive of the gift was stated by the husband "to avoid any difficulty to my wife in

obtaining possession over the willed property after me". As regards the use of words in the deed

"I make a gift", the observations were recorded at page 582 of the report (AIR 1925 Oudh 568),

in the following words:--

"Now, so far as the language of the document is concerned, there can be, no doubt that the

technical expression 'I make a gift' was used with reference to the entire subject-matter of the gift

including the three items, and in describing the exception the donor used words indicating

the corpus and not the usufruct of the excepted property ".

After quoting these observations, the learned AJ.C. observed as under:--

"It must be taken, therefore that in construing the deed of gift as a whole their Lordships reached

the conclusion that by the use of the expressions quoted above the intention of the donor was to

reserve the usufruct for her own use during her lifetime. If such a reservation in favour of the

donor is valid in law as it must be held to be on the authority of the two decisions of their

Lordships of the Privy Council, I see no reason for holding that a similar reservation of a creation

of an interest having the same effect in favour of the donee is invalid."

This case was taken in appeal to the Privy Council and is reported as Amjad Khan v. Ashraf

Khan and others (AIR 1929 PC 149). The Privy Council agreed with Sir Wazir Hassan on the

construction of deed in question that only a life interest was intended and ,held that if the wife

took only a life interest, it came to an end on her death and the appellant who was her heir took

nothing, and if the life interest was bad the Wife took no interest at all and the appellant was in

no better case,

23. Next case is the case of lawazish Ali than v. Ali Raza Khan (AIR 1948 C 134). In

paragraph 19 of the Judgment it was observed as under :_

"In their Lordships` opinion this view of the matter introduces into Muslim law legal terms anal

conceptions of ownership familiar enough in English lave, but wholly alien to Muslim law. In

general. Muslim law draws no distinction between real and personal property. and their

Lordships know of no authoritative work on Muslim law. whether the Hedaya car Baillie or more

modern works. and no decision of this Board which affirms that Muslim law recognises the

splitting up of ownership of land into estates, distinguished in point of quality like legal and

equitable estates, or in point of duration like estates in fee simple, in tail, for life, or in remainder.

what Muslim law does recognise and insist upon, is the distinction between the corpus of the

property itself (ayn) arid the usufruct in the property (Hanafi). Over the corpus of property the

lave recognises only absolute dominion, heritable and unrestricted in print 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 interests 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."

It was rioted in the judgment that gifts of the corpus (Hiba), gifts of the usufruct (Ariyt) and

usufructuary bequests contain distinct concepts. It was also observed that "no doubt where the

use of a house is given to a man for his life he tray, not ineptly. be termed a tenant for life, and

the owner of the house, waiting to enjoy it until the termination of the limited interest may be

said trot inaccurately, to possess a vested remainder. But though the same terms may be used in

English and Muslim law, to describe touch the same things, the two systems of law are based on

quite different conceptions of ownerships. English law recognises ownership of land limited in

duration; :Muslim law admits only ownership unlimited in duration, but recognises interests of

limited duration in the rise of property ... .. ... _.... Limited interests lave long been recognised

under Shia haw t, The object of "Hobs" is "the empowering of a person to receive the profit or

usufruct of a thing with a reservation of the owner right of property ire it . . _ . .. I haw a

bestowed on thee this mansion .. . for thy life or my life- or for a fixed period is binding by

seizin on the part of the donee.( Bailli 11 226). See also 32 tom. 172 at page 179. Their

Lordships think that there is no different between the several Schools of Muslim law in their

fundamental conception of property and ownership. A limited interest take effect out of the

usufruct under any of the schools. 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,' hen 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 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".

24: This very question came under consideration of the Lahore High Court, Lahore, in the

case of Mst. Khan Bibi v. Mst. Safia Begum and others (PLD 1969 Lahore 338). In this

judgment, Justice K.E.Chauhah, as he then was, examined the case-law on the subject, the

treatises on the Muslim Law, the traditions of the Holy Prophet (p.b.u.b ) and at pages 355 and

360 noted the salient points of difference between 'Hiba' and 'Arias' in the form of a Table. It was

pointed out that in considering the nature of a transaction, the English word "gift" is generic and

must not be confused with the technical term of Islamic law 'Hiba' and 'Arias' according to which

alone a transaction in a given case should be scrutinized The learned Judge also lucidly dealt

with the concept of "property' in English Law and in Muslim Law. The result of the difference

between the two concepts was noted in the following words:--

"(a) If a gift (or bequest) of the corpus is made it cannot he limited in duration of extent in

respect of the corpus. Any such limitation being void,

(b) but if a gift (or bequest) of the usufruct is made, it may be limited in duration; and

(c) the corpus may vest in one person and usufruct in another. "

The learned Judge, after considering the law on the subject analysed the nature of the

transaction by constructing the transaction as contained in the deed of gift. The relevant extracts

of the deed are reproduced hereunder:--

This deed was interpreted to indicate that we donor did not gift the corpus of the house to the

donee; a right of residence during lifetime .vas provided tire interests created for the donee were

only for the lifetime and so in transaction was in the nature of ' Ariyat' and not ' Hiba' . It was

held that the learned Civi! Judge erred in assuming that the above deed purported to transfer the

corpus of the house. This as well as other cases were noted by Justice Aftab Hussain of the

Lahore High Court in Fateh Muhammad v. Nathu (1982 CLC 2082) observing that in the present

case the. donor had made a gift of property in favour of his sister's son for life that after his death

the property would revert to him or his children. So this case appears to be a case similar to the

case of Mst. Bibi Alam Taj and others v. Mst. Inayat Begum (PLD 1963 Pesh. 199) wherein the

cases decided by the said Court (Peshawar High Court) were noticed and it was observed that

Muslim Law recognises interest of limited duration in usage of property but holds ownership to

he of unlimited duration; that a person can create life-interest in property in favour of particular

individual with absolute remainder in favour of himself and his descendants; and that after

termination of such limited interest, successors can validly claim their respective Sharia share out

of estate of the deceased. In this case the disputed property originally belonging to Qazi Mir

Alam had been gifted by him to his widow and four daughters on the basis of three mutations

which were held to be "Guzara" mutations. It was noted that the mutations relating to the

property were clearly "Guzara" mutations as was so apparent also from the report of the Patwari

and order of the Revenue Officer. as entry in Column No. 13 in one case of the mutations

showed that the word "Guzara" was cut and "Hibba" was overwritten. In Fateh Muhammad's

case (supra), the learned Judge concluded as under:--

"I am of the view that if the gift had been only subject to right of reversion without any

additional condition in accordance with the uniformity of view about Muhamnnadan Law it

would have amounted to an absolute gift and the condition of reversion, would be a nullity. But

in the present case the intention of the donor appears to be that he did not wish to divest himself

or his children of the ownership of the property but wanted to confer only a right of mesne

profits of the property on the donee during his lifetime It is for this reason that he had imposed a

condition that the donee would have no right to transfer the property in any mariner whatsoever.

This appears to be a case of the gift of usufruct only and not corpus.'°

25. Mr. Justice Muhammad Afzal Zullah as he then was, in the case of Farid (represented by

heir) v. Mst. Nur Bibi (PLD 1970 Lah. 502) held that normally where a widow takes an estate

under the technical condition, i.e. she takes a life estate in the property and not mere right to

maintenance out of the usufruct of the property. The latter mode of devolution, i.e. for the

purpose of maintenance, is often described in the Revenue Records with the suffix of "Barai

Guzara added to the expression. Learned Judge noted that in that case the word "Guzara" or any

other similar expression indicating maintenance, was not only not used during the mutation

proceedings but also was not mentioned throughout the period of 22 years, after which the suit

was instituted. He concluded that use of the words by the Revenue Authorities means nothing

else than for 'estate t-o a property, i.e. in the corpus of the property and not only the usufruct of

the property for maintenance and, therefore, the corpus of the land in dispute was gifted away by

the appellant to the respondent that the gift of the land was that of corpus of the land and that the

condition attached to it, being only for life of the donee or till her remarriage, was void.

26. The Peshawar High Court in the case of Kazim v. Muhammad Iqbal through 9 L.Rs,.

(PLD 1987 Pesh. 152) held that where deed of gift by husband in favour of his wife, was by

necessary intendment, a dower deed and thereafter in Revenue Record, ownership in suit land

was transferred in favour of donee wife within knowledge of her husband, such wife would be

deemed as full owner of suit land and her title thereto, could not be questioned, and any

condition laid. down in the deed that donee would enjoy usufruct of property during her lifetime,

would be void and of no effect. Reliance in this case. was placed on 'the cases of Sar Anjam

Khan v. Afzal Khan (PLD 1972 Pesh. 37) and Said Akbar and others v. Mst. Kakai (PLD 1975

SC 377). In the case of Said Akbar, the deed was described as Tamliknama which was termed as

commonplace word to denote outright gift of property though ordinarily Tamlik connotes

disposal, transfer or conveyance of property and it is well-established principle that description

of an instrument is not always decision of its true nature. This Court, after considering the terms

of "Tamliknama" of the said case recorded the conclusion noticing various precedent cases

appearing on the subject that the gift in favour of the lady was of the corpus and was not merely

of the usufruct till her life rather it constituted her to be full owner of the property and the

prohibition against any transfer or mortgage of the property by her during her lifetime, being in

defeasance of her rights under the gift under the well-settled principle of law became void. It was

noted that in the deed words , which expression is derivative of the Arabic word " the equivalent

of which is the "lord" or "possessing absolute authority" and the words were used alongwith the

other stipulations one of which was that the executing as well as his heirs will be completely

divested of any right whatsoever in the land and the real motivation for making the gift was the

impending marriage of the donee with Said Afzal. Learned Judges further observed:

"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 descent 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 or mortgage of property by her during her lifetime became void."

27. A Bench presided over by Mr. Justice Muhammad Afzal Zullah, the then Chief Justice of this

Court examined this very proposition in the case of Mst. Kaneez Bibi and another v. Sher

Muhammad and 2 others (PLD 1991 SC 466). The entries of the mutation noticed in this case

read as follows:--

As regards the statement showing that only usufruct was gifted to the donee by use of the words

it was observed that "in all probability the donee and her parents might not have agreed to it",

therefore following words were also used by the Revenue Officer who heard the donor making

the statement:--

The entries of the mutation were then construed by this Court in the following words:--

"Not only this, the entries in various columns of the mutation also are very clear that it was the

land, the corpus thereof which was being mutated and not only the income therefrom. These

suggestions are further strengthened by the language used in the order of attestation of the

mutation; wherein gift was accepted as if the land had also been transferred under the gift. The

phraseology relating to and specification and the particulars of the land in question together with

the word; which could refer to the new entries in the various columns of mutation, are indicative

sufficiently of the fact that the gift was of the corpus of the land; as it did contain very clear vivid

coalition of. i.e., during lifetime. The use of the word " o~ " in the light of the above discussion

was only an embroidery. Thus, it was a case of gift of corpus and not only of the usufruct."

After recording the aforequoted observations, learned Court further observed as under:--

"Had it been gift of the usufruct only we might have examined the correctness or otherwise of

the views expressed by the Lahore High Court in a Division Bench judgment wherein can be

found a very elaborate discussion on various aspects of this subject. Scores of decided cases were

cited therein and a distinction was sought to be made between the two types of gifts in cases like

the present one leading to different effects. It has been found necessary to make these remarks

about the judgment in the case of Mst. Khan Bibi v. Mst. Safia Begum and others PLD 1969

Lahore 338 because it might need further examination to hold; whether in the changed

circumstances, as already noted, in the present Constitutional set-up the same defect or disability

regarding gift of usufruct would continue to be attachable to it as was visualised in the said case

of Mst. Khan Bibi. Same would apply to the reference of the said case in a later Lahore High

Court judgment by one

of us (Muhammad Afzal Zullah, C.J.) in Farid v. Nur Bibi PLD 1970 Lahore 502."

28. In view of the abovenoted observations, the legal questions required to be determined in

this case assume further importance.

29. In the light of the above dissuasion it is crystal clear that Muslim Law recognises, permits

and sanctifies the gift of usufruct as well. So our answer to the first question is' that gift of

usufruct of immovable property is permitted and recognised by the Islamic Law. Answer to the

second question is that a gift of property for life made by a person to any person, who may be his

issueless wife, where intention is to transfer and convey corpus of the property is to be construed

as an outright and absolute gift of property and any condition attached derogatory to the transfer

of corpus in that case would be void. In other words, any derogatory condition sought to be

attached on the "Umra" gift will be void and shall not be recognised.

30. Applying the principles noted above, nature of the gift made by Jamal Din vide Mutation

No. 34 sanctioned on 15-3-1949 may now be determined. Statement made on 25-6-1948 reads as

under:

Statement made on 4-7-1948 before the Revenue Officer reads as under The proceedings

recorded by the Revenue Officer on 4-7-1948 omitting the statement of Jamal Din read as

under:-- The order recorded by the Revenue Officer sanctioning mutation on 15-3-1949 to the

following effect:--

31. It -will be seen that entry of the name of Mst. Karam Noor in column 10 of the Mutation

Register as owner and words used by Revenue Officer in the order attesting the mutation cannot

form valid basis for construing intention of the maker of the alleged gift. Such an intention is

obviously to be gathered by giving natural meaning to the words used by the maker. The

Revenue Officer in fact added words in the order attesting the mutation on his own as these

words were not uttered by Jamal Din in his either of the statements dated 25-6-1948 or 4-7-

1,948. It appears that Revenue Officer added these words as if Jamal bin-had made a grant

similar to the "widow's estate" under Custom and as such the same is to ensure till .death or till

remarriage of the grantee wife. The use, of the words pointing' towards the entry incorporating

name. of Mst: Karam Noor in the 'column of ownership' as owner and the word in the order

attesting mutation are of no consequence. Even the appellants/plaintiffs appear to be labouring

under misconception that the giant made by Jamal Din vide Mutation No. 34, dated 15-3-1949

amounted to widow's life estate. The title of the plaint filed by them reads as under:--

Again, the appellants in paragraph &their plaint alleged as follows

32. Similarly in para. 5 of the plaint, the following grounds were urged by the appellants in

support of cancellation of mutation in favour of Mst. Karam Noor:--

(Underlining is ours).

33. Issue No. 9 which arose out of the pleadings of the parties, was as follows

"9 Whether Mst. Karam Noor was limited owner and plaintiffs are entitled to get the suit land

as heir of last male owner Jamal Din and Mutation No. 674 sanctioned by order dated 15-1:

1987 by Tehsildar and by order dated 18-3-1987 passed by A.C., Gojra and entries in the

Revenue Record and Jamabandis after 1949 are illegal, void and liable to be set aside? O. P.

P. "

Muhammad Ashraf, one of the appellants, appeared as P.W. 2 in the case. He made the

following statement in his examination-in-chief:-- .

(Underlining is our)

34. It is an admitted position on record that after 1950 till the filing of the suit, Mst.Karam

Noor was shown as the full owner of the disputed land in the Revenue Record and no objection

was ever raised by any of the appellants to these entries. It is also not disputed that in 1960-61

during consolidation proceedings Mst.-Karam Noor was given Murabba No.27 in lieu of

Murabba No.29 treating her as the owner of the land. The above referred admitted facts leave no

room for any doubt that the appellants' case throughout was that Mst.Karam Noor was a limited

owner of the disputed land and, therefore, after her death the land reverted back to the appellants

as heirs of late Jamal Din.

35. The grant made by Jamal Din is not to be evaluated on the touchstone of customary law as

the same did neither apply to the alienation in question nor Jamal Din held the land as last male

owner under Custom. Jamal Din was absolute owner of the land. He, in the capacity of absolute

owner, disposed of the land by gift to his two sons, and one daughter-in-law as well as. to

Mst.Karam Noor, his wife. Since 1950, Mst. Karam Noor was shown as 'full owner' of the land

in question in the Revenue Record and then in consolidation proceedings conducted in 1960-61,

Mst.Karam Noor was given land treating her as owner.

36. The plea that Mst.Karam Noor or her heirs the respondents/defendants are entitled to

receive 1/8th share i.e. widow's share in the land in dispute is not premised on any rule of

customary law. It was rather based on plea that Jamal Din had given the one square of land to

Mst. Karam Noor for life or till remarriage the land on her death is to revert to Jamal Din except

to the extent of Sharee share as wife.

37. Learned counsel for the appellants/plaintiffs argued that the intention was to make gift of

usufruct as Jamal Din in his statement dated 4-7-1948 made to Revenue Officer clarified that

he is' desirous of giving the land to the wife till she lives for maintenance. The contention of

the learned counsel for the respondents/defendants on the other hand was that the words "till

life or till remarriage" being derogatory to the absoluteness of the gift were inconsequential

and invalid. The question thus is of determination of the true scope and intent of the

transaction of gift made by Jamal Din in favour of Mst. Karam Noor. Whether Jalam Din

made gift of corpus or of the mere usufruct of the land?

38. The statement made by Jamal Din before Patwari and Revenue Officer. the order attesting

the mutation as well as the contents of the plaint and statement made during trial reproduced

above, clearly show that it was the "land itself". the corpus of land which Jamal Din gifted in

favour of his wife Mst.Karam Noor though he added the condition of till life therewith and

not the mere enjoyment of usufruct thereof. The case of the appellants throughout was that

land in dispute was gifted to Mst.Karam Noor and that she was limited owner of the land

which after her death reverted back to the appellants as heirs of late Jamal Din. This stand was

deviated to some extent before us as learned counsel submitted that the gift made was not of

corpus but of usufruct only. However, this deviation in the stand is not possible because of the

admitted position noted above. The appellants nowhere pleaded that late Jamal Din had only

transferred the usufruct of the land and retained ownership over the corpus of the land. The

first statement made before the Patwari indicated that Jamal Din transferred the disputed land

for life in favour of his wife and to give effect to the disposition as aforesaid he had delivered

possession of the land to her.

39. The transaction of gift so reported to the Patwari constituted complete gift of the land

made by husband in favour of the wife. Disposition of land in question amounted to 'Umra'

recognized as one of species of gift of property under Muslim Law. Reference at this stage may

appropriately be made to Ahadis of the Holy Prophet (p.b.u.h.) which have also been quoted in

paragraph 8 above, i.e. 'Narrated Jabir Allah's Messenger said: 'What is given in life-grant

belongs to the one to whom it is given.' (Agreed upon)." This very tradition/Hadith has been

quoted in Sahih Muslim in the following words:--

"3972. Jabir b. 'Abdullah (Allah he 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. 'Abduilah (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 lifelong 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) as saying: Life grant is for one upon whom it is bestowed."

40. The Prophet of Islam, Muhammad (peace be upon him) reported by Jabir b. 'Abdullah

(Allah be pleased with them) has said that "keep your property to yourselves and do not squander

it, for he who conferred a life grant upon another that property will belong to him upon whom it

is conferred whether he lives or dies, and (would pass on) to his successors (as heritage)'

(Tradition No.3980 in Sahih Muslim). At this stage, the two decided cases one by the Holy

Prophet, Muhammad (peace be upon him) himself and the other by Tariq, the freed salve of

Uthman (Allah be pleased with him), quoted in paras. above may be reproduced as these fully

apply to the facts of the instant case:--

The Tradition No.3982 quoted in Sahih Muslim reads as under

"Jabir (Allah be pleased with him) reported that a woman gave her garden as a life grant to her

son. He died and later on she also died and left 9 son behind and brothers also. The son`s of the

woman making life grant said (to those who had been conferred upon this Umra): This .garden

has returned to us. The sons of the one who had been given life grant said: This belonged to our

father, during his lifetime and in case of his death. They took their dispute, to Tariq, the freed

slave of 'Uthman'. He called Jabir and he gave testimony of Allah's Messenger (may peace be

upon him) having said: Life grant belongs to one who is conferred upon' this (privilege). Tariq

gave this decision .and then wrote to 'Abdul-Malik and informed him, Jabir bearing witness to it.

'Abd alMalik said : Jabir has told the truth. Then Tariq gave a decree and, as a result thereof, it is

to this day that the garden belongs to descendants of one who was conferred upon the life grant."

41. It was because of the aforesaid 'traditions of the Holy Prophet, Muhammad (peace be upon

him) that Imam Shaukani observed that "an overwhelming majority of the jurists is of the

opinion that when the declaration of 'Umra is made' it is the donee who becomes the possessor of

the thing donated and it does not revert to the donor, unless an explicit condition is laid down in

regard to it". This condition, according to the Hanafi School of thought, is not valid as has been

noted in Hidaya. It is for this reason that if the corpus is gifted and conditions are attached to it,

the gift is treated as complete and absolute for ever and conditions are held to be null and void.

42. In the instant case, the words used clearly indicate that Jamal Din intended to make

'Umra' gift. The gift of the corpus of the land as such was complete and absolute and the

condition of sought to be attached is to be held as invalid and ineffective and it was so rightly

held by all the learned Courts below.

43. Further, statement of Jamal Din recorded by Revenue Officer on 4-7-1948, which was

emphasised upon by the learned counsel for the appellants was as follows : --

This statement was just a step to give effect to the. original disposition of the property

reflected in the statement before the Patwari on 25-6-1948. This statement was explanatory in

nature, disclosing the reason which prompted him to make the gift and, therefore, the same could

not alter the nature of the disposition of the property. From this explanation, it cannot be inferred

that the disposition related only to the usufruct of the land and not its corpus as the words

appearing in both the statements unambiguously retained to the corpus of the property and not to

the usufruct. Even the appellants/plaintiffs, as has been shown font the contents of the plaint and

statement of Muhammad Ashraf, one of the plaintiffs, never treated the gift as the gift of usufruct

and not of the land. The admitted fact, emerging from the record leave no room for any doubt

that Mst. Karam Noor was accepted as an owner of the disputed land though it was pleaded that

she was a limited owner of the property and after her death the land reverted back to the

appellant as heirs of late Jamal Din. This plea is without merit as the gift made was 'Umra' gift

which. according to the principles or 'Muslim Law deduced from the Tradition of the Holy

Prophet (peace be upon him), is a complete gift and condition derogatory to the absoluteness of

the gift is invalid, and the property so gifted does not revert to the donor after the life of the

donee.

44. For the! reasons given above we agree and affirm the view which prevailed with the

learned three Courts below that the transfer in favour of Mst.Karam Noor was a gift and,

therefore, the condition attached to it was void and transfer by way of gift was valid. The

conclusion arrived at by the Courts below is neither perverse nor based on misreading of

evidence so as to justify interference by this Court. The appeal is, therefore, dismissed but in the

circumstances of the case, we will make no order as to costs.

M.B.A./A-7/S Appeal dismissed.