MUSI IMRAN Vs. IBNE HASAN

JUDGEMENT

(1.) These are three Second Appeals Nos. 434, 435 and 758 of 1930, arising out of three cases. The pedigree of the family is as follows:

(2.) Mt. Bint Sakina was the daughter of Aliali by his second wife, and his other children were by his first wife. Mt. Bint Sakina married Ibne Hasan, who is the respondent in these second appeals. Mt. Bint Sakina died on 9 June 1925. On 25 June 1925, she executed a deed of relinquishment of her dower, which amounted to Rupees 25,000, and on 6 June 1925, she executed a deed of gift of all her immovable property, in favour of her husband, the respondent. By these two documents she disposed of all her estate. It is the deed of gift which is in question in S.A. No. 758 of 1930. The question which has been raised in Second Appeals Nos. 434; and 435 of 1930 is whether this relinquishment of her dower, which also amounts to a gift, is valid, and if so, to what extent. It has been held by the lower appellate Court that these deeds are valid to the extent of one-third. The dower debt and the immovable property comprised the whole property which was possessed by Mt. Bint Sakina. It is found by the lower appellate Court that she executed these documents under the conditions which amounted to marzulmaut, that under the Shia law the gifts are valid to the extent of one-third only. The appellants have challenged this finding on the ground that the gifts should be held under the Shia law to be altogether invalid, and the respondents have challenged the finding in cross-objection on the grounds that the conditions of marzulmaut are not fulfilled. The learned Counsel for the appellants relies on three rulings as follows: Fahidma Khanam V/s. Jafri Khanam (1908) 30 All 153, Amrit Bibi V/s. Mustafa Husain A.I.R. 1924 All 20 and Husaini Begam V/s. Mohammad Mehdi A.I.R. 1927 All 340.

(3.) All these are cases of wills and it has been laid down in the first ruling quoted that a Shia cannot make a valid bequest of all his property to one of his heirs to the exclusion of the other heirs, unless the heirs so excluded, consent to it subsequent to his death: but that a bequest of only one-third of his estate will be valid, if made to one of the heirs without the consent of the other heirs. We consider that we are not called upon to pronounce our opinion upon the validity of this particular doctrine of law because we consider that the present case is clearly distinguishable from the cases which have been dealt with in the rulings relied on by the learned Counsel for the appellants. The distinction lies in the fact that in the present case we are not dealing with a will which is in favour of one heir only. We are dealing with a gift made during marzulmaut, and the law on this point is contained in authorities other than those quoted in the rulings in question. The authorities on the question of the validity of a gift during marzulmaut by a Shia have been very ably considered in a judgment by the late Rafiq, J., in a Division Bench case of this Court reported in Kharshed Husain V/s. Faiyaz Husain A.I.R. 1914 All 6. It is to be noted that there was no question raised that the gift was altogether invalid. On p. 423 (of 12 A.L.J.) it is stated: One group of eminent Shia doctors would maintain the gift in respect of the whole of the donor's estate while the other equally high in learning and authority would have it that a gift made in marzulmaut is valid to the extent of one-third only of the estate of the donor in spite o? the delivery of possession prior to his death.