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Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 41 of 155)
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whole of the consideration money is said to have. been immediately return-
ed by the vendor to the vendee, and the other circumstances that have
been above referred to, I think the learned Subordinate Judge has correctly
found that the deed of the 3rd June, 1878, is in reality nothing more than a
deed of gift, and that it is void owing to possession not having been given."

In this finding I entirely Concur. Upon a full consideration of the
deed, and also upon the judgments which have been delivered in the Courts
below, my own view is that the finding is one which must be accepted by
us in second appeal, because it is a finding of fact, not so far as the question
of the interpretation of the deed is concerned, but certainly so far as the non-
delivery of possession under the deed of the 3rd June, 1878 is concerned. In
saying so, the Privy Council ruling in Durga Chowdhrani v. Jeioahir Singh
Ghowdhri (2) is helpful to explain how far Courts in second appeal can
interfere with findings of fact. " I suppose after this finding it will not be
denied that no possession whatever was given by the so-called vendor to
the so-called vendee under the deed of the 3rd June, 1878, up to the date
of the suit, which was the 12bb January, 1886, for this is a finding which
cannot be questioned in second appeal. I have no doubt that the deed is
toot a deed of sale, because though it prebends to be a deed of sale, it

(1) 11 A. 1. (2) 18 G. 23,


contains in itself a statement that the consideration for such sale had 1891
been gifted away or relinquished or excused. This being so, I cannot MAT 15.
bold it to be other than a simple deed of gift, as the Courts below have
held, and, holding so, possession was absolutely necessary under the APPEL-*
Muhammadan law which governs such a case. And it follows that the LATE
doctrine of notice applicable to bona fide transfers for value has no' appli- CIVIL

cation to this case, there baing no possession or ostensible ownership in '

the donee under whom the plaintiff claims. 18 ft. 409-

[414] As to the necessity for possession for completing the right 11 i.W.N.
under a simple gift, the Legislature has had to consider this position in (1891) 139.
defining the meaning of gift in s. 122 of the Transfer of Property Act
(IV of 1882) ; but while making this definition and, indeed, when framing
the whole of the Act, they were careful, and for good reasons, to frame
s. 129, which runs as follows :

" Nothing in this chapter relates to gifts of moveable property made
in contemplation of death, or shall be deemed to affect any rule' of
Muhammadan law, or, save as provided by s. 123, any rule of Hindu or
Buddhist law."

In the present case the findings of both the Courts below are, and the
deed itself stated, that there was no passing of consideration and that
there was no evidence to show that such consideration had passed. I
think Mr. Justice Brodhurst was right in holding upon these findings that
it was simply a deed of gift or Iliba under the Muhammadan law, and not
Hiba-bil-aiwaz, that is to say, a contract which approximates a contract
of sale.

This is an appeal under the Letters Patent, and I think, therefore,
after what I have said, that this appeal should stand dismissed, but that,
as no one appsars for the respondents, no order as to costs is necessary.

EDGE, C. J. This appeal has arisen out of a suit which was
brought by the plaintiff against one Wilaiti Begam, her grand-daughter,
Ilahi Begam, and certain other persons, and in that suit the plaintiff
claimed possession and a decree to eject the defendants. The plai'tntiff
alleged his title to be by a purchase for valuable consideration under a
deed of the 1st August 1884 from Ilahi Begam, and under a deed of sale
of the 3rd June 1878 made by Wilaiti Begacd in favour of Ilahi Begam.
The plaintiff's title was denied by Wilaiti Begam. The other defendants
did not dispute his title. It has been found by the Courts below that the
plaintiff paid the Es. 1,000 consideration of the sale-deed for the sale
of the property to him by the deed of the 1st August 1884. It has been
found also that the alleged consideration, Es. 700, mentioned in the
deed of the 3rd June 1878, was not paid ; and it has also been found [415]
that possession had never been given by Wilaiti Begam to Ilahi Begam,
or any one representing IlahiiBegam. The Courts below came to this
conclusion and found that the deed of the 3rd June 1878 was not in fact
a deed of sale but was a deed of gift, and on these findings the first Court
dismissed the plaintiffs suit and the second Court dismissed his appeal.
* The appeal in this Court came on to be heard before my brother Straight
and the late Mr. Justice Brodhurst. Mr. Justice Brodhurst accepting the
finding that no possession had been given, and that no consideration had
passed under the deed of the 3rd June 1878, and misinterpreting some
passages in the judgment of one of the Courts below, which he read as a
finding that the sale of the 1st August 1884 was collusive and fraudulent,
delivered judgment dismissing the appeal. My brother Straight, on the
other hand; held that the question of fraud and collusion did not ariso

A VII 34

13 All. 416



1891 in the case, as indeed it did not ; and that there was no evidence to

MAY 15. show that the consideration for the deed of the 3rd June 1878 had not

been paid. He came consequently to the conclusion that the appeal to this

APPBL- Court should be allowed. Under the circumstance of this difference of

LATE opinion the appeal to this Court stood dismissed.

CIVIL, -^kis appeal has been brought under s. 10 of the Letters Patent.

' In order to clear the ground, I may say that no one suggests that

is A. 409* the finding of fact that possession never was given under the deed of the
11 &.W.N. 3rd June 1878 should or could be questioned in second appeal. No one
(1891) 159,. disputes the fact that, if the document of the 3rd June 1878 was a deed
of gift, the Muhammadan law would apply, and, there having been no
possession, the gift would fail. But the point which has been argued
before us is simply this. It is contended, and, I think, rightly, that a
finding of fact where there is absolutely no evidence to support it can be
questioned in second appeal, because it is then a question of law. It is
beyond doubt in this case that there has been no evidence given on the
one side or the other to show either that the consideration mentioned
in the deed of the 3rd June 1878 was paid or that it was not paid,
beyond the evidence which the deed affords on the face of it. In this
[416] light we have to construe to the best of our ability the deed in
question ; and on this part of the case I may say that I speak with very con-
siderable diffidence, knowing little or nothing of the vernacular, and sitting
beside my brother Mahmood, who is a master of his own language. How-
ever, I have to give my opinion for what it may be worbb. Now there is
one thing that is quite clear, that the deed professes to be on the face of
it a sale-deed. It bears the stamp which was required for a sale-deed, in
respect of such consideration as was mentioned in it. The stamp would
have been insufficient if the deed bad been a deed of gift. This is only a
slight indication to my mind as to what the parties intended the deed in
question to be. Then we come to the actual words of the deed. In express
terms it states that the consideration had been received. This is beyond
doubt. But, following these words, are the words which have raised
a doubt in this case. My brother Mahmood kindly placed before
me two different dictionaries as authority, and in each of those dic-
tionaries I find that the Words bakhsh dena bear the meaning ' to
give, to grant, or to forgive.' There are other words which follow
them and which bear the meaning, so far as I can ascertain from
the dictionaries, of granting or conferring. Then the question is, do
the words to which I have referred mean, read with the context, that
the consideration was foregone, in the sense that it had never been received,
or is the meaning, whether it represents the truth or not, that the con-
sideration had been received and had boon given back or returned. Beyond
the wording of the deed there is no evidence as to what the transaction
was. It appears to me, forming the best judgment I can, that whether
the parties were in fact carrying out a transaction of sale or a transaction
of gift' the passage read as a whole is evidence that a sale at a fixed price
was made and the consideration having beten paid was returned to the *
vendee. That is my interpretation of the particular document. One may
suspect, looking at the document, that it may have been in truth merely a
transaction of gift. On the other hand, against such an impression being
well-founded, there is the stamp, and there is the fact which has been
found by the Courts below, that Wilaiti Begam executed two almost
precisely similar documents at about the same [417] time in favour of
other members of the family, and that those members of her family



made use of them as sale-deads and sold the property to others. 1891
ID this case it appears to me that the onus of proving that there was MAY 15.
no consideation paid for the deed of the 3rd June 1878, and that it
was a deed of gift and not a deed of sale, was upon Wilaiti Begam. It is APPEL-
quite true, as my brother Mahmood has said, that a plaintiff coming into LATE
Court in a suit for ejectment is bound to prove his title, but in this case CIVIL.
as part of the proof of title against the only person who disputed it the
plaintiff put in evidence the deed which had been executed by Wilaiti *? A, 409=
Begam on the 3rd June 1878, and which on the face of it, truthfully or ** A.W.N,
not, stated most distinctly that she had received the Es. 700 as consi- W89I) 159.;
deration. It was, in my judgment, under these circumstances for Wilaiti
Begam to show that the statement in the deed under her hand was incorrect
and that no consideration had ever been paid, and until she established
that by evidence, I think a Court of law was bound on the document
to find, as against her, that the consideration had passed, she having
stated the fact in the deed under her own hand. There is only one other
matter to which I need refer, and it is this. Undoubtedly in cases where we
may apply the rules of justice, equity and good conscience, we are bound to
apply them, and if it be the fact that the deed is ambiguous on the face of it,
and that it may be considered by one person as a deed of gift and by another
as a regluar deed of sale, in my opinion, according to justice, equity and good
conscience, we should hold against the person who executed the deed that
it was a dead of sale, and so protect the interests of the innocent purchaser
who treated the deed as a deed of sale, and, acting upon it as such, paid
Eg. 1,000 consideration for the transfer of the property to him. For these
reasons I would allow the appeal and decree the plaintiff's suit for posses-
sions with costs in all the Court.

TYRRELL, J. I entirely agree with everything that has fallen from
that learned Chief Justice, and I would only add a few words on the
terms of the deed in question. Looking to the phraseology of the
deed, I am of opinion that my brother Straight was right in
[418] regarding it as a sale-dead. The terms seem to me to indicate
explicity that Musammat Wilaiti Begam made an absolute sale of certain
property for Es. 700 to Ilahi Begam, and, " having received the sale
consideration in full/' granted that money to her vendee. She further
stated in the deed that "I, the vendor, have no share or right in the sold
property since the time of the sale. Now I and my heirs neither have
nor shall have any objection to the validity of the sale and of the gift of
the sale consideration. Therefore I have executed these few words by way
of a deed of sale and gift of sale consideration." The vernacular runs as
follows :

" Hath * * nawasi apneki bai katai karke zar-i-samman tamam
wa kamal wasul pakar bakhsh diyaaur hiba kardiya." Again, " lihaza
yih chand batain bataur bainamah wa bakhshish zar-i-aamman ki likhh

din, ;I and again, " Sihat is bainamah wa bakhshish zar-i-samman men

* * * i>

The first sentence avers that the " sale was complete or absolute (bai
katai) ; that the price hud passed (wasul pakar), and was afterwards given
and preaentai to the vendee." It was suggested that " bakush " in this
passage should ba read in its secondary sanse of " excused or forgiven ;"
but here it is coupled with the words " aur hiba kardiya," which can only
mean " I have given," and I must therefore interpret these words " Bakhsh
diva" as also meaning " I have given." The second phrase distinctly
defines the deed as an instrument of double import, first, of sale to the



1891 vendee, and secondly, of gift to her of the consideration money ; and the

MAY 15, third paragraph binds the vendor nob to question this " sale-deed " and

" gift of the price." After execution, this instrument was registered as a

APPEL- sale-dead, and I find that, while it contains all the constituents of a " sale"

LATE as defined in sec. 54 of the Transfer of Property Act, it does not fall under

CIVIL. fch 6 definition of a gift as given in s. 122 of the same Act, It is, of course,

true that s. 129 of the Act forbids me to apply any of the sections 122 to

18 A, 409= 128 so as to affect any rule of Muhammadan law ; but I am not using

11 A.W.N. a. 122 for any such purpose, but as a guide only to the proper definition of

(1891) 159, a gift, and I look similarly to s. 54 for that of a sale, there being no

limitation to latter 'section such as is found in s. 129 in regard to gift. The

[419] deed in my judgment is in terms and effect a deed of sale, and I

have no materials for forming an opinion whether any, or what, occult

meaning or design may underlie these terms. I therefore concur in the

order of the learned Chief Justice.

KNOX, J. I entirely concur with all that has been said by the learned
Chief Justice with reference to the interpretation that should be put upon
the document and upon the consequences which should follow from that
interpretation. I need not allude to the language in which the document
is couched, because it has bean given in full by my brother Tyrrell, and I
agree with him in the interpretation which he has placed upon the words
of the document. Whatever may have been the real nature of the trans-
action, I am of opinion that it was intended by the executants of the
document that it should bear to the word the face of a deed of sale and
not that of a deed of gift. It was, under the law then current and direct-
ing what stamp such dead should bear, stamped as a deed of sale and not
as a deed of gift. It was registered, and it seems to me that any person
who sought to know under what liabilities the property stood, or to
ascertain who was entitled to it, would have had no means of knowing the
nature of the transaction except from the deed now before us, and, on this
ground, as well as on the grounds already stated, I think it would be most
inexpedient to put upon it any interpretation other than that of a deed of
sale. I therefore concur in the order which the learned Chief Justice and
my brother Tyrrell propose to pass in the case.

Appeal decreed.

13 A, i!9(F.B.)

Before Sir John Edge, Kt., Chief Justice, Mr. Justice Straight, Mr.
Justice Brodhurst, Mr. Justice Tyrrell, and Mr. Justice Mahmood.

(Plaintiffs'). [4th November, 1889.]

Muhammadan Law Public mosquz Right of aUMuk^immaians without distinction of
sect to use such mosque for the purposes of worship Bight tj say " amin" loudly
during worship.

Where a mosque is a public mosque open to the use of all Muhammadans with-
out distinction of seot, a Muhammadan who, in the bonn fide exercise of his
[420] religious duties in such moeque, pronounces the word " amin " in a loud
tone of voiise, according to the tenets of his seot, does nothing which is contrary
to the Muhammadan ecclesiastical law or which is either an oSonce or civil wrong,
though he may by such conduct cause annoyance to his fellow-wroshippera in the
mosque But any person, Muhammadan or otherwise, who goos into a mosque



not bofia fide for religious purposes, but mala fide to create a disturbance there 1889
and interferes with the devotion of the ordinary frequenters of the mosque, will

render himself criminally liable. NOV. 1.

[R., 35 M. 681 (633) = 18 Ind. Gas. 195 (196) = 15 P.R- 1902 (P.B.) Cr. = 104 P.L.R, -T

1902.] 1ULL

THE plaintiffs in this case, members of a sect of Muhammadans calling _
themselves Moioahhids or Gair Mokallids, sued the defendants, who were 13 A, 419
of another sect, called Hanafis or Mokallids for a declaration that they (P,B,).
were entitled to worship in a certain mosque, and, in the course of prayers
in such mosque, to pronounce the word ' amin ' audibly. The defendants
pleaded that the suit was not cognizable by a Civil Court ; that the
plaintiffs had no concern with the mosque, which had been built by
Hanafis, and in which they, as Hanafis, had a right to worship to the
exclusion of other sects. The Court of first instance (the Munsif of
Meerut) found that the suit was cognizable by a Civil Court, and gave the
plaintiffs a decree in the following terms : " It is therefore ordered that
the plaintiffs are entitled to say the word ' amin ' loudly, but not at the top
of their voice, nor so as to trouble the ears of a fellow- worshipper."

On appeal by the defendants, the Subordinate Judge, agreeing with
the Court of first instance that the suit was cognizable by a Civil Court,
found that the mosque was a public mosque, built about 400 years ago
by a person "whose sect was unknown, and that neither party had
established an exclusive right, by prescription or in any other way, to
worship in it ; but that both parties as members of the Muhammadan
community had an equal right to perform their prayers and worship there
according to the rites and ceremonies of their respective sects. The
Subordinate Judge accordingly modified the decree of the Munsiff in so
far as that decree restricted the tone of voice in which the plaintiffs were
entitled to say ' amin ' and gave the plaintiffs the decree which they
prayed for : also granting an injunction against the defendants restraining
them from interfering with the plaintiffs going into the mosque, and
worshipping there according to the usages of their sect. The defendants
then appealed to the High Court.

[421] The appeal came on for hearing before Mahmood and Brod-
hurst, JJ., who, by their order of the 8th June 1887, referred it to the
Full Bench for disposal.

Pandit Sundar Lai for the appellants.

The Hon'ble Mr. Conlan and Mr. Amir-ud-din, for the respondents,


EDGE, C.J. This was a suit which originated in an order passed by
the Magistrate of Meerut in 1884, by which he bound the parties before
him over to keep the peace, and prohibited the plaintiffs from repeating
aloud, in a certain mosque, the word ' amin ' at the end of the prayer.

The plaintiffs brought this suit for a declaration of their right
to repeat the word aloud in the mosque, and to restrain the defendants
from interfering with them in the performance of their religious duties.
There was another question, namely, as to raising the hands, which
does not arise in the appeal before us. The plaintiffs succeeded in
the Munsif's Court, which decided that they were entitled to say
the word ' amin ' loudly, but not at the top of their voice, nor so as
to trouble the ears of their fellow-worshippers a decision probably
right enough in intention, but so vague as to leave the parties very
much where they were before ; beyond giving the plaintiffs a right to
repeat the word ' amin ' aloud. There was an appeal by the defendants



1889 from the decree of the Munsif, and objections were filed to the portion of

Nov. 4. the Munsif's decree which limited apparently the tone of voice in which

the word ' amin ' might be repeated. In first appeal the Subordinate Judge

FULL o f Meerut found as a fact that the mosque in question was public mosque,

BENCH, in which all the Muhammadans were entitled to say their prayers. The

"~""7 defendants here contend that the mosque was one the use of which had been

' restricted to those Muhammadans who followed doctrines of ritual of

' ' '' Imam Abu Hanifa. The finding of the Subordinate Judge disposed of this

contention, and that finding is in the following terms :

" The conclusion I arrived at is that mosque was originally built
some 400 years ago by some Muhatiimadan, whose name no [422] one is
able to give, nor is it known to which particular sect he hebonged, and that
it has been since used as a public place of worship without distinction by
all the Muhammadans who cared to go there."

Now this is a finding that it is a public Muhammadan mosque ; as I
read the written statement of the defendants, it is not suggested that the
plaintiffs mala fide repeated aloud during their devotion the word "amin."
It is only alleged that the plaintiffs dissented from the ritual which had
been observed. It is found as a fact that the plaintiffs are Muhammadans,
and it is not found that they either did or desired to do anything in the
mosque which was contrary to the Muhammadan ecclesiastical law. I
am of opinion, therefore, that the appeal must fail. There can be no
doubt that a Muhammadan or any one else who went into a mosque not
bonafide for religious purposes, but mala fide to create disturbance there,
and interfered with the devotion of the ordinary frequenters of the mosque,
would bring himself within the reach of the criminal law. The only
order which we pass here is that the appeU be dismissed with costs.

Straight, Brodhurst, and Tyrrell, JJ., concurred.

MAHMOOD, J. I entirely agree in what has fallen from the learned
Chief Justice, and should not have added anything but for the circums-
tances that I was a party to the order of reference and also because the
case relates to a subject upon which, on a former occasion, I was unfortu-
nately unable to agree with the late learned Chief Justice of this Court
and his honorable colleagues, who delivered their judgments in Queen-
Empress v. Ramzan (P without having had an opportunity of considering
the views which I expressed in my judgment in the same case. I have
referred to that case, though it came before this Court in its Criminal
Jurisdiction, because the point there raised was identical with the one
which has arisen here in the form of a civil suit, and which we in the
Full Bench are now called upon to determine. The principle of deciding
the question must, however, be the same in both cases.

[423] The main object of the suit is to obtain a declaration that the
plaintiffs are entitled to worship in the mosque pronouncing the word
'amin' audibly in the course of the prayers, and also an injunction res-
training the defendants from obstructing the plaintiffs in performing
worship in the mosque according to their tenets.

The suit was resisted by the defendants mainly upon the ground
that the suit was not cognizable by the Civil Court, that the plaintiffs
were heretics and were not entitled to say 'amin' aloud in the mosque.

The controversy thus raised between the parties is exactly of the
same nature as that which I had to consider in the case of Quean-Empress
v. Hamzan (1); but the original Arabic authorities which I quoted in
delivering my judgment in that case are not to be found in the published

(l) 7 A. 461.


-> cH c'ty r^U 13 I J J

!J AC d


report. The original judgment, however, ia now before me, with the 1889
original authorities, and I wish to repeat them here, with such introductory .Nov. 4.
passages from my judgment as are equally pertinent to this case. In
introducing those texts, I said (at p. 470) that the word amin is of FOLL
Semetio origin, being used both in Arabic and Hebrew, and has been BKNCH.
adopted in prayers by Muhammadans as much as by Christians. -

The word does not occur in the Kuran, but, in conformity with the ** * * 1

Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 41 of 155)