Tajju Khan v. Mazhar Khan

 

Tajju Khan v. Mazhar Khan

 

At the Civil Court of Fyzabad

 

NAME OF THE CASE	Tajju Khan v. Mazhar Khan
CITATION	368 of 1944
DATE OF THE JUDGEMENT	9 November of 1949
APPELANT	Tajju Khan
RESPONDENT	Mazhar Khan
BENCH/JUDGE	Mr. Justice Kidwai
STATUTES/CONSTITUTION INVOLVED	Fundamental Rights of Indian Constitution; the Property Transfer Act 1882; Muslim Personal Law 1937
IMPORTANT SECTIONS AND ARTICLES	Fundamental Rights of Indian Constitution- Article 14 The Property Transfer Act 1882- Section 126

 

 

INTRODUCTION

 

A ‘gift’ is regarded as a transfer of property where interest is transferred without any consideration from one living person or party to another. It is a gratuitous and inter vivos in nature. This is general definition that is accepted in all religious, including Muslim law.

 

As per Muslim law, a gift is also known as ‘Hiba’. The Hanafi lawyers define it as ‘an act of bounty by which a right of property is conferred is something specific without an exchange’. The Shias hold that ‘a hiba is an obligation by which property in a specific object is transferred immediately and unconditionally without any exchange and free from any pious or religious purpose on the part of the donor’. Since Muslim law views the low of gift as a part of the law of contract, there must be an offer, an acceptance and a transfer. Where offer is referred as izab, an acceptance is known as qabul and transfer is regarded as qabza.

 

 

REVOCATION OF GIFTS

 

In spite of the fact, it is observed that Prophet was against the tradition of revocation of gifts, which is a well-established rule of the Muslim law which states that all voluntary transactions, including gifts are revocable. The Muslim law givers have approached the subject of revocability of gifts from several angels. A hiba may be revoked at any time by mere declaration by the donor before delivery of possession but after the delivery of possession, a hiba may be revoked, wholly or in part in express terms only through court or by consent of the parties with some exceptions given below:

 

1.    When a gift is made by one spouse to another.

 

2.    When the donee or the donor is dead.

 

3.    When the donor and the donee are related within the prohibited degrees.

 

4.    When the value of the subject-matter is increased.

 

5.    When the subject-matter of the gift is no longer in the possession of the done, i.e., when he has disposed of it by sale, gift or otherwise or where he had consumed it or where it had been lost or destroyed.

 

6.    When the identity of the subject matter of the gift has been completely lost, just as wheat, the subject matter of the gift, is converted into flour.

 

7.    When the donor has received something in return.

 

8.    When the object of the gift is to receive a religious or spiritual benefit or merit, such as sadaqa.

 

9.    From one aspect, they hold that all the gifts expect those which are made by one spouse to another or to a person related to the donor within the degrees of prohibited relationships are revocable.

 

This case discusses this pertinent issue of revocation of gifts and the interpretation of the questions that can a gift be revoked given to the donor’s brother and how can prohibited degrees of relations be interpreted in the case where the donors share the same blood but the same sex.

 

FACTS OF THE CASE

 

On 25^th January 1941, Tajju Khan, the plaintiff executed a deed or a gift in favour of Mazhar Khan, the defendant, also his own brother and delivered possession of the property to the done. Subsequently, the plaintiff instituted the suit out of which this appeal arises to obtain possession of the gifted property by among other things, revocation of the deed or gift.

 

Here, the defendant pleaded that the gift was not revocable. The trial court accepted the plaintiff’s claim and decreed the suit. On appeal, the learned Civil Judge of Fyzabad held that the parties were within the prohibited degrees of relationships and that consequently, the gift could not be revoked. He accordingly, has now come up in the second appeal before the Supreme Court.

 

 

ISSUE RAISED BEFORE THE COURT

 

The issue which arose out of the regarding case:

 

According to the Muslim law whether a gift given to the donee by the donor where both the donee and the donor holds the relationship of brotherhood, can be revoked back when the delivery of the possession is made to the donee ?

 

 

RELATED PROVISIONS

 

·      Fundamental Rights Of The Indian Constitution

 

v Article 14- (Equality before law) The State shall not deny to any personbefore the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.

 

·      The Transfer of Property Act 1882

 

v Section 126- 126. When gift may be suspended or revoked .- The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part, at the mere will of the donor, is void wholly or in part, as the case may be. A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded. Save as aforesaid, a gift cannot be revoked. Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice. Illustrations

o   (a) A gives a field to B, reserving to himself, with B’s assent, the right to take back the field in case B and his descendants die before A. B dies without descendants in A’s lifetime. A may take back the field.

o   (b) A gives a lakh of rupees to B, reserving to himself, with B’s assent, the right to take back at pleasure Rs. 10,000 out of the lakh. The gift to belong to A.

 

 

 

JUDGEMENT

 

 

Mr. Hyder Hussain who was Advocate for appellants contended relying upon various authorities revocation only if the parties are related within the prohibited degrees, this is to say, are so related that marriage between them is not allowed by the Islamic Law. He contended that Arabic words, literally prohibit anything ‘related by blood and forbidden in marriage’. Consequently, since no question of marriage arises between persons of the same sex, there is no prohibition of revocation when the donor and the donee belong to the same sex.

 

The Court’s judgement rejected this contention. If the literal meaning of the words quoted is alone considered then no doubt the contention of Mr. Hyder Hussain would prevail but the context in which the are used shows that they are not used in their literal sense; they are used compendiously to describe the degree of the relationship which should be such as to exclude the legality of marriage between the two where such a marriage in physically is possible.

 

Instead of reciting the numerous degrees of relationships, one phrase is used which would cover them all. No difficulty in understanding the real significance could arise on the Arabic texts because, in that language, the form of verb as used is different if the subject of that verb is a male from what it would be if the subject is a female. Thus, the form of the verb used shows that a gift by a male is being dealt with. And of course, the same rule will apply to female  since the law is not different for males and females and it mentions a gift to the brother as being irrevocable.

 

Following the text of the Durr-ul-Mukhtar which has already been quoted, there is what is known as a ‘ramification’. This is as follows: A man makes a gift to his brother and a stranger of something which is undivided and gives possessions of it. There may be a recovery so far as the stranger is concerned because there is no impediment. The same chapter of the Fatawa-i-Alamgiri relating to revocation of gifts, after stating the principal in the words which have already been quoted, proceeds to elucidate the prohibition and gives certain examples, one of which is stated as follows: It is said if a foreigner is a male came to our country as a permitted visitor and he has a brother in our counterthat gift cannot be revoked.

 

It must be held that a gift by one person to another who is closely related that a marriage between the two, if it could physically take place, i.e., if the two belonged to opposite sex, would be illegal, cannot be revoked. The result is that this appeal fails and is dismissed with costs.

 

 

 

CONCLUSION

 

 

According to the Sunni law inter-spousal gifts are irrevocable but in case of the Shia law it is revocable. Gifts between blood relatives are irrevocable under Shia law in all cases and under Sunnia law if the donor and the donee are within the net of the prohibited degree in marriage if they belong to the same gender this is to be ascertained by presuming one of them to be a female. So, if the donor and donee are brothers the gift cannot be revoked. A gift would be irrevocable even if the donor and the donee are of the same sex but are so related that a marriage between the two would be illegal if the two belonged to opposite sex. A gift to a brother is therefore irrevocable.

 

So, this case rather than going for a literal interpretation went for a compendious one taking care of the intension and the purpose of the law. This case is solely on the basis of purposive interpretation and is the major highlight of the case.