TAJJU KHAN Vs. MAZHAR KHAN

JUDGEMENT

(1.) On 25-1-1941, Tajju Khan, plff. executed a deed of gift in favour of Mazhar Khan, deft. who is his own brother & delivered possession of the property to the donee. Subsequently plff. instituted the suit out of which this appeal arises to obtain possession of the gifted property by, among other things, revocation of the deed of gift. The deft, pleaded that the gift was not revocable. The trial Court accepted the plff's, claim & decreed the suit. On appeal, the learned Civil Judge of Fyzabad held that the parties were within the prohibited degrees of relationship & that, consequently, the gift could not be revoked. He accordingly allowed the appeal & dismissed the suit. The plff. has now come up in second appeal.

(2.) The only contention pressed by Mr. Hyder Husain, for the appellant, was that the donor & the donee being both of the same sex could not be said to be related within the prohibited degrees & that, therefore, the gift was revocable. The only case relating to this point which was placed before me was that of Ghulam Mohammad v. Din Mohammad, A. I. R. (23) 1936 Pesh 208 in which a Bench composing the Judicial Commissioner & the Additional Judicial Commissioner held that there was no impediment to the revocation of a gift made by a person to his sister's son. The question was, however, not discussed & proceeded on the basis of a passage of Mulla's Muhammadan Law, which is ambiguous--the ambiguity not being noticed by tbe learned Additional Judicial Commissioner who pronounced the judgment. Moreover, no notice is taken of an illustration given by Mulla which militates against the decision. Mr. Hyder Husain, therefore, placed before me modern text books as well as the original authorities of Muslim Jurists.

(3.) In Hamilton's translation of the Hidaya vide Edn. 2 by Grady, p. 487--it is stated :