TAVAKALBHAI WALAD SULTANBHAI Vs. IMATIYAJ BEGAM JAVJE MIRBANESAHEB

JUDGEMENT

(1.) By a document dated the 5th of August 1889, one Umrao Bibi purported to make a gift in favour of three persons, Mirza Vazir Beg, Imatiyaj Begum and Chaggan Bibi, of certain Inam lands. She stated that "the lands have been given to you three as gifts. All my rights of ownership are transferred to you. The Vahiwat or management of the lands should be made by one of you three, namely Vazir Beg, and after paying Government dues, Rs. 40 should be paid out of the residue of the income annually to Imatiyaj Begum, and the remainder should be devided equally between Mirza Vazir Beg and Chaggan Bibi. Mirza Vazir Beg should have Vahiwat and give income according to their shares to the two. They have no right of claiming division of the lands from Mirza Beg, but only a right of claiming income every year."

(2.) Mirza Beg s interest in the property has now passed to the second defendant who contends that the deed of gift in so far as it conferred benefits on the two women mentioned therein is void, and that he is absolutely entitled. This suit is brought by Imatiyaj Begum to enforce her rights under the deed of gift.

(3.) The learned Judge of the lower appellate Court has held, upon the authority of Nawab Umjad Ally Khan v. Mussumat Mohumdee Begum (1867) 11 Moo. I.A. 517 that the gift is good and complete under the Mahomedan Law, and that upon the authority of Lali Jan v. Muhammad Shafi Khan (1912) 34 All. 478 the deed can be supported in favour of the plaintiff. The last mentioned case is very similar to the present, being a gift in favour of an individual, subject to a condition of payment of one-third of the income to another individual. A suit by the last named beneficiary was brought against the assignee of the other donee. The learned Judges of the Allahabad High Court held that the conclusion of the trial Judge in favour of the donee of one-third was supported by the decision of the Privy Council in Nawab, Umjad Ally Khan v. Mussumat Mohumdee Begum (1867) 11 Moo. I.A. 517 and that though that was a case between Shias, the rule was considered as applying equally to Shias and Sunnis. The case here is between Sunnis.