ABSTRACT

CASE ANALYSIS OF
AMJAD KHAN v ASHRAF KHAN

The case was an appeal filed by Amjad Khan (hereinafter referred to as the plaintiff), the son
of a Salar Khan, who was the original plaintiff in a suit filed against two decrees of the Court
of the Judicial Commissioner of Oudh. The dispute was regarding proprietary shares in eleven
villages, and there is no question with regard to title of two plots purchased by Musammat
Waziran that was declared by the Courts in India. The proprietary shares belonged to one
Ghulam Murtaza Khan. Murtaza Khan, by way of a registered deed dated January 17, 1905,
made a gift of the above mentioned shares to his wife, Musammat Waziran and put her in
possession of that property. Later, Murtaza Khan died on February 6, 1906 and his wife died
on November 18, 1909, leaving her brother Salar Khan as her sole heir, after whose death, his
son, the plaintiff, was the heir. The defendants are the nephews of Murtaza Khan, who, it was
alleged by the plaintiff, took possession of the properties. According to the terms of the deed,
one-third of the property was given with absolute rights to Musammat Waziran, and the rest of
the property was given for her to have possession, but without right of alienation. After death
of Musammat, the entire property gifted away would revert back to the donor’s heirs, who will
have full rights and the heirs of the donee will have no rights.

The plaintiff placed reliance on Muasamut Hummda v Mueaamut Budlun and the Government
and contended that Musammat had received a good and valid gift of all properties, and that
under Mohammedan Law there cannot be transfer of property by way of gift except an absolute
interest whereas the defendant argued that it was only a life-interest, which ceased after the
donee’s death. Their Lordships based their judgement on the terms of the deed, reading it as a
whole and giving effect to its terms, they concluded that the donor intended only to make a gift
of life-interest to his wife. On the argument that under Mohammedan Law, there cannot be a
gift except an absolute interest, the Lordships felt that there was no need to express any opinion,
as if the interest acquired by Musammat was that of a life-interest, then the plaintiff has no title
to the property, and even if such a limited interest is not allowed, then Musammat has no
interest in that property, and the plaintiff cannot claim the property as her heir. Hence it was
held that the plaintiff has no title to the property, and the appeal was dismissed.
 CASE ANALYSIS OF
AMJAD KHAN V ASHRAF KHAN
SYNOPSIS

Case Name: Amjad Khan v Ashraf Khan

Case Number: (1929) 31 BOMLR 809

Court: Before the High Court of Bombay

Bench: Lord Shaw, Lord Atkin, Sir. L. Sanderson

Author: Sir. L. Sanderson

Delivered On: February 26, 1929

Relevant Law: Mohammedan Law

Head Note:

 Appellant’s father Salar Khan was the brother and sole heir of Musammat Waziran,
who was gifted the property in question by her husband Ghulam Murtaza Khan.
 The terms of the gift deed said that Musammat Waziran was to enjoy the absolute
possession of one-third of the property, and the rest were to be given to her to have
possession, but without right of alienation. It also mentioned that after the death of the
donee, the property would revert back to the donor’s heirs, who would have full rights,
whereas the donee’s heirs would have none.
 The question before the Court was whether Musammat Waziran had absolute rights
over the property, as alleged by the appellant, which would mean that the appellant is
the rightful heir to the property, or whether she only received a life-interest as contended
by the defendant?
 It was held that Musammat Waziran had only received a life-interest in the property,
and hence appeal was dismissed.

Argument of the Appellant: It was argued by the appellant that even though there were
conditions imposed on the transfer of gift by the donor, the Mohammedan Law to be applied
would ensure that only the transfer would be affected and not the conditions themselves. It was
also contended that there is no question of a gift being of only a life interest in the property as
that is invalid under Mohammedan Law.

Argument of the Respondent: The contention of the respondent was that according to the gift
deed issued by the donor, Musammat Waziran only obtained a life interest in the property as
such, and hence her heirs did not have any right upon the property.

Held: The appeal was dismissed by the Court, and the property was given to the respondents.
 CASE ANALYSIS

BEFORE THE HIGH COURT OF BOMBAY

CASE NAME: AMJAD KHAN v ASHRAF KHAN

Case Number: (1929) 31 BOM.L.R. 809

Bench: Lord Shaw, Lord Atkin, Sir. L. Sanderson

Author: Sir L. Sanderson

Delivered On: February 26, 1929

Referred Cases: The case of Mussamut Hummda v Meaamut Budlun and the Government was
relied upon by the appellants to show that the creation of a life estate by means of a gift inter
vivos was not consistent with Mohammedan practice. However, it was observed by their
Lordships that the facts of this cited case differ materially with those of the instant case, as in
the present case there is the existence of a formal deed of gift on whose construction the
decision of the court will depend.

Relevant Law: Mohammedan Law

Facts of the Case:

The instant case is the result of an appeal filed by Amjad Khan (hereinafter referred to as the
plaintiff), the son of a Salar Khan, who was the original plaintiff in a suit filed against two
decrees of the Court of the Judicial Commissioner of Oudh. The dispute was regarding
proprietary shares in eleven villages, and there is no question with regard to title of two plots
purchased by Musammat Waziran that was declared by the Courts in India. The proprietary
shares belonged to one Ghulam Murtaza Khan. Murtaza Khan, by way of a registered deed
dated January 17, 1905, made a gift of the above mentioned shares to his wife, Musammat
Waziran and put her in possession of that property. Later, Murtaza Khan died on February 6,
1906 and his wife died on November 18, 1909, leaving her brother Salar Khan as her sole heir,
after whose death, his son, the plaintiff, was the heir. The defendants are the nephews of
Murtaza Khan, who, it was alleged by the plaintiff, took possession of the properties.
According to the terms of the gift deed, one-third of the property was given with absolute rights
to Musammat Waziran, and the rest of the property was given for her to have possession, but
without right of alienation. After death of Musammat, the entire property gifted away would
revert back to the donor’s heirs, who will have full rights and the heirs of the donee will have
no rights.

The learned Subordinate Judge who tried the suit was of the opinion that the above mentioned
deed dated January 17, 1905, was in the nature of a family settlement, that Ghulam Murtaza
Khan gave to his wife one-third of the property absolutely and a life estate only in two thirds
of the property which on his death was to revert to his heirs; and he made a decree accordingly.
The matter went as an appeal to the Court of Judicial Commissioner of Oudh. The learned
Judicial Commissioners came to the same conclusion, while differing on reasons, and found
the matter in favour of the defendants.

An issue was raised in the Trial Court about whether Ghulam Murtaza Khan was a Hanafi
Mussalman or one belonging to the Shia Sect. It was held by the Subordinate Judge that he did
not belong to Shia Sect, but he was a Hanafi Mussalman. The appeal to the Court Of Judicial
Commissioner was also decided on the basis that the Mohammaden Law applicable was the
Hanafi Law and not the Shia Law.

Argument of the Appellant:

The contention on behalf of the appellant was that Ghulam Murtaza Khan, by the gift deed,
had transferred the corpus of the property specified therein to his wife without any reservations,
but subject to certain conditions for enjoyment. It was then further argued that if these
conditions were inconsistent with the transfer of an absolute interest in the property, the
Mahommedan Law applicable to this case would give effect only to the transfer and not to the
conditions. It was also argued that the deed along with the possession given to the done
constituted a good and valid gift of all the property comprised in the deed.
The plaintiff relied on the principle that where it is clear that the intention of the donor is to
make a gift to the donee of the corpus of the property comprised in the gift, and there is a
condition attached that the donee should take a limited interest or should take it for life, under
the Hanafi law the condition would be void and there would be a complete and absolute gift of
the property. In other words it was argued that if a gift of tangible property is made subject to
a condition inconsistent with full ownership on the part of the donee of the thing given, the gift
is valid, but the condition void.

The learned counsel for the plaintiff placed reliance on the case of Mussamut Hummda v
Meaamut Budlun and the Government, (1872) 17 W.R. 525, to show that creation of a life
estate by means of a gift inter vivos is not consistent with Mohammedan usage.

Argument of the Respondent:

The main argument on behalf of the defendant/respondent was that the deed by the deed
registered by Murtaza Khan dated January 17, 1905, was valid, and through that deed
Musammat Waziran merely obtained a life interest in the property specified therein, and that
the interest ceased with her death in 1909, and since the plaintiff’s only claim to the property
as heir to Musammat Waziran, he had no title to the property.

Judgement:

The Lordships identified the material question pertaining to the case as to what the true
construction of the deed was. They were of the opinion that the intention of the donor is to be
seen by reading the terms of the deed as a whole, and giving to such terms the natural meaning
of the language used.

It can be seen that by the terms of the deed, the donor purported to make a gift without
consideration to his wife of the entire property mentioned therein. He then divided the property
into two parts, in which the first part which comprised of one-third of the total property he gave
to his wife with powers to alienate that property or any part thereof by way of mortgage, sale
or gift. It was also stated in the deed that after the death of the done, “the entire property gifted
away by this document”, would revert back to the donor’s heirs, and this was not limited to
only the two-thirds part of the property over which the done had no right of alienation. That is
to say that the entire property would revert back to the donor’s heirs, subject to any alienation
made by the donee on the one-third part of the property over which she had powers of
alienation. Hence, it was the Lordship’s opinion that in reading the deed as a whole it shows
clear proof that the intention of Ghulam Murtaza Khan was to make a gift to his wife of only a
life interest in the entire property comprised in the deed together with the above-mentioned
power of alienation in respect of one-third of the property. He never intended that his wife
should have absolute control over the properties to alienate it as she wishes, and wanted to
ensure that after the death of his wife, the property reverted back to his own heirs, and not to
the heirs of his wife. If Musammat Waziran did not make any alienation with respect to the
one-third of the property on which she had such right, even that property was intended to revert
back to the heirs of Murtaza Khan and not to the appellant as heirs of his wife.

On the argument that under Mohammedan Law, a transfer of life cannot be made by means of
gift, the Lordships did not express any opinion, as they pointed out that here, the plaintiff would
be in a dilemma. If, on one hand, the interest acquired by Musammat Waziran was only that of
a life interest, and if such interest can be obtained by way of gift under Mohammedan Law,
then the interest came to an end with the death of Musammat Waziran, and the plaintiff
claiming as her heir has no right to the property. On the other hand, under the Hanafi law such
a limited interest as a life estate could not be transferred to Mussammat Waziran by way of gift
inter vivos, then Musammat Waziran acquired no interest in the property under the deed of
January 17, 1905, and the plaintiff, claiming as her heir, can have no title to the property.
Therefore, it can quite clearly be seen that either way, the heirs of Musammat Waziran would
get no interest in the disputed property at all. Hence, for these above details, the Lordships were
of the opinion that the plaintiff has no claim on the property in dispute.

Held:

The appeal was dismissed by their Lordships, and the property was allowed to stay with the
defendants/respondents. It was seen by the Court that the intention of the donor, Murtaza Khan,
was clearly to give only a life interest in the property to his wife, subject to the powers of
alienation with regard to one-third of the property. It was also held that if the gift deed was
considered to be valid, as was intended by the donor, Musammat Waziran only obtained a life
interest in the property and her heirs would have no claim to the property. Even if the deed was
not valid, as was contended by the appellant, it would imply that the gift was invalid, and
Musammat Waziran obtained no rights at all to the property, ensuring that her heirs also would
have no rights. The decision of the Appellate Court was upheld.