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PETITIONER: STATE OF U.P.

       Vs.

RESPONDENT: SAYED ABDUL JALIL

DATE OF JUDGMENT01/02/1972

BENCH: BEG, M. HAMEEDULLAH BENCH: BEG, M. HAMEEDULLAH SIKRI, S.M. (CJ) RAY, A.N.

CITATION:  1972 AIR 1290            1972 SCR  (3) 342

ACT: Mahommedan  law-order  of  Muslim ruler  of  Princely  State allotting  house-If  would amount to a gift of  the  corpus- Whether  operates as a grant of life estate or  a  revocable licences  Evidence  Act  (1 of 1872),  s.  92  proviso  (6)- Admissibility of other evidence.

HEADNOTE: Pursuant  to  an  order by a Muslim ruler  of  an  erstwhile princely-State,  the respondent was allotted a house and  he was  living in it.  After the merger of  the  princely-State with  the  appellant-State,  rent  was  demanded  from   the respondent and he filed a suit for a declaration that be was the   owner  in  possession  of  the  house;  and   in   the alternative,  that he was a licensee entitled to  remain  in possession for life without payment of any rent. The  High Court, in second appeal, held that the use of  the Urdu  words  ’inteqal’  and ’atta’  showed  that  the  Ruler intended  the order to be a valid declaration of gift  under Mohammedan Law and that when the respondent took  possession of the house, he became its owner.  The High Court also held that  no other evidence was admissible for deciding  on  the Ruler’s intention. Allowing the appeal to this Court, HELD  :  (1) There being no mention in the order  either  of rights  of ownership or those of a life-estate  holder,  the mere use of the two words, did not determine what was  meant to  be  granted.  The word ’inteqal’ is used  in  connection with  a transfer of property, but in the context of its  use here, it could only indicate that the respondent was to have change or transfer his residence in the physical sense.  The word ’atta’ is used to denote all kinds of grants  including a mere permission to live in a house.  Therefore,  assuming that the order reduced the terms of a grant to writing, oral and  other evidence was both necessary and admissible  under s.  92,  proviso (6), Evidence Act, to  resolve  the  latent ambiguity.   The evidence adduced in the case,  however,  is more  consistent  with  the view that  the  Ruler  meant  to resolve the immediate financial difficulty of the respondent by  giving  him free residential accommodation than  with  a conferment  of  the ownership of or a life interest  in  the house. [346 B-H]

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(2)  There  was  no declaration of any gift  either  of  the corpus or the usufruct and the admissible evidence  relating to  the  nature  of the transaction, which  the  High  Court should   have  considered,  showed,  that  the   transaction amounted  to  nothing  more  than  a  grant  of a  licence revocable   at   the  grantor’s  option.   From   the   mere expenditure  by the respondent of money over some  necessary repairs,  an  inference of a larger grant cannot  be  drawn. [347 C.-E]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 279 of 1967. 343 Appeal  by special leave from the judgment and decree  dated September  15,  1966 of the Allahabad High Court  in  Second Appeal No. 222 of 1960. G.   N. Dikshit and O. P. Rana, for the appellants. E.   C. Agrawala, for respondents Nos. 1, 2, 4 and 5. The Judgment of the Court was delivered by Beg,  J. There are two appeals by Special Leave  before  us, Leave, against the Judgment and decree of a learned Judge of the  Allahabad  High  Court allowing  a  plaintiff’s  second appeal The  plaintiff’s case was that the Government of Rampur  had given  him  a house "under the orders of  His  Highness  the Nawab  of  Ramur, passed on 23rd June,  1945".   It  appears that,  after the merger of Rampur State in Uttar Pradesh  in 1949,  when Rampur became a district of Uttar Pradesh,  this house  was given by the Government of Uttar Pradesh  to  the Municipal   Board  of  Rampur,  Defendant-Appellant,   which demanded  rent  from  the  plaintiff  by  notice.   On   the plaintiff’s  refusal to pay, the house was attached on  23rd February,  1955.  The plaintiff deposited a sum of Rs.  100- under  protest.  He then filed his suit, on 26-10-56, for  a declaration that he is the owner in possession of the house, and, in the alternative, that he is a "licensee" entitled to remain  in possession of the house for life without  payment of rent The  defendants, the State of Uttar Pradesh,  the  Municipal Board of Rampur, and the Public Work.$ Department at Rampur, denied  the  alleged gift of either the ownership  or  of  a life-interest  in  the house to the  plaintiff.   They  also pleaded  that  there  was no relationship  of  landlord  and tenant between the plaintiff and the defendants.  Their case was  that,  if any permission to reside in  the  house  was given  to the plaintiff by the ruler of the State of  Rampur before the merger of Rampur with Uttar Pradesh, it was valid and  effective  only  so long as the plaintiff  was  in  the service of the former ruler of Rampur.  They set up a  claim to "damages for use and occupation in the form of rent  from the  plaintiff at Rs. 10/- per month from 1-4-1953 to  30-1- 1954".  According to them, the plaintiff’s licence, if  any, automatically  terminated  when the State of  Rampur  merged with  the State of Uttar Pradesh.  The defendants  had  also pleaded  that  the alleged gift, which was not  governed  by Mahomedan  law,  could not be upheld because  no  registered deed  of gift was executed to transfer a house the value  of which was far in excess of Rs. 100/-. The  Trial  court as well as the first Appellate  Court  bad found, after ,in examination of all the evidence,  including the alleged 344 order  dated  23rd June 1945, of His Highness the  Nawab  of

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Rampur (Exhibit 1), a letter dated 30th June 1949  ’,Exhibit A-10)  from  a Minister of Rampur State  to  "the  Secretary (Buildings), fixing rent for the house and the oral evidence that  the  plaintiff  had  not  proved  either  of  the  two alternative  claims set. up by him.  A learned Judge of  the Allahabad  High  Court  had,  upon  the  plaintiff’s  second appeal, reversed the concurrent findings of fact recorded by the Courts below because the learned Judge thought that "the order  of  the  Nawab  of  Rampur  dated  23rd  June  1945", constituting a valid declaration of a gift, by the owner  of the  house,  followed  by the  plaintiff’s  admitted  actual possession  of  the house conferred ownership of  the  house upon  the plaintiff-respondent according to  Mahomedan  law. The  learned Judge also held that nothing beyond this  order of  the  Nawab could be looked into for  deciding  what  was intended  by  the  Nawab  and that  the  use  of  the  words "inteqal" and "atta" in the following extract from the order in  Urdu  determined the intent of the  Nawab  conclusively. "Ap  ki sakunat ke waste Abdul Karim Sabib wala  makan  atta farmaya  gaya hai.  Ap aj hi us me muntaquil ho  jayen...... Ap un se mil kar inteqal niaka.1 ki karrawai kariye". The questions arising before us for decision are :  firstly, whether  the  alleged  gift is governed  by  Mahomedan  Law; secondly,  whether  the requirements of  Mahomedan  law  for establishing a gift of the house or of its usufruct for life to  the  plaintiff could be held to have been  satisfied  in this case; and, thirdly, whether nothing beyond the order of 23-6-1945  could  be looked into to  determine  the  Nawab’s intention. One  could legitimately presume that a gift by the Nawab  of Ranipur, a Muslim, would be governed by the rules of Mahome- dan  law  if  the Nawab was dealing  with  his  own  private property.  In the case before us, we find that the plaintiff himself has pleaded that he acquired his right and title  to the  house in dispute from the Government of  Rampur  State, although the action of the Government was said to be  "under the orders dated June 23, 1945, of His Highness the Nawab of Rampur".   Upon an examination of the alleged  order,  which has been treated by the learned Judge of the Allahabad  High Court  as a valid declaration of a gift of the house by  its owner, governed by Mahomedan law, we find that it is only  a piece of information sent. to the plaintiff who is described as  "Nigran  Shikar Mahi" or "Supervisor  of  Fishing."  The communication,  translated in English in the paper  book  of this Court, reads as follows :               "His  Highness  has  passed  orders  that  you               should  immediately vacate the house in  which               you reside and 345               pay  up to the landlord all his  dues.   Abdul               Karim  wala  house has been given to  you  for               your residential purpose.  You should shift to               that  house  this  very  day.   The  Executive               Engineer (Buildings) has been intimatto  allot               the  said  house to you  immediately.   Please                             contact  him  and  take  steps  to  va cate  the               house". The plaintiff himself had produced Agha Khan, the  Assistant Military  Secretary of the Nawab of Rampur, who  had  signed and sent the communication, set out above, to the plaintiff. His  evidence  shows that the Nawab of Rampur  had  probably given some oral order to get the private house in which  the plaintiff was living vacated, and "to give" another House to him  for  residence.  Under cross-examination,  the  witness

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stated that, by using the word "inteqal" in the writing,  he meant to convey that "the plaintiff should leave that  house and live in the house in dispute." This witness, who was not owner  of the house, could not gift the house in dispute  to the  plaintiff.   He  could only "give"  the  house  to  the plaintiff  in  the sense that he could,  under  the  Nawab’s orders,  obtain  its allotment for the plaintiff.   He  said that  its previous occupant, a mechanic, was also  occupying it,   without  payment  of  any  rent,  with   the   Nawab’s permission.  The implication of such a statement could  only be that the plaintiff had a similar permission.  He did  not depose that the Nawab had asked him to inform the  plaintiff that  the  Nawab  was  making a gift of  the  house  to  the plaintiff.   The witness stated that the house  belonged  to the  Government of Rampur.  All this evidence is  consistent with  the view that the Nawab meant to do nothing more  than to  resolve  the immediate difficulty of the  plaintiff,  by giving  him some free residential accommodation in  a  house owned by the Government so that the plaintiff could clear up his  dues to his landlord, rather than with  the  conclusion that the Nawab intended to confer the ownership of the house on the plaintiff. It  is  well established that a document must be read  as  a whole.  In a document meant for a transfer of ownership, the purpose is generally stated clearly to be that the  property given will be owned and possessed henceforth by the donee in such a way that he could use it or deal with it as he liked. The  only ’karawai’ or proceeding, to which a  reference  is made   in  the  document,  seemed  to  be   "allotment"   of accommodation  or  transfer of  plaintiff’s  residence  into another  house,  owned by the State, for  which  appropriate steps  were  to  be taken by  a  Government  official.   The communication  savs,  as  translated,  that  the   Executive Engineer  (Buildings)  had been informed that the  house  in question  was  to  be "allotted" to the  plaintiff.  If  the plaintiff  was  to become its owner, that  would  have  been communicated to the 346 Executive  Engineer.  A transfer of ownership would, in  the ordinary  course, be expected to be evidenced by  much  more clear and unequivocal language.  The appropriate  proceeding after  a gift is that of mutation in Municipal records.   No evidence  was  given of any mutation in a  Municipal  record showing transfer of ownership of the ’corpus’ for which  the term ’milkiyat’ is used. It  is  true that, as the learned Judge observed,  the  word ’Inteqal’  is  used  ill  connection  with  a  transfer   of property.   This is so when it occurs in juxtaposition  with ’Jaidad’.   In (the document before us, the following  words indicate that transfer which the Nawab had in mind was  that of  the  plaintiff  himself  to  another  residence  in  the physical  sense : "Ap aj hi us me muntaqil ho  jayen."  This meaning  is  further  emphasised by the  use  of  the  words "sakunat  ke waste" (for residential purpose) which was  the only stated object of the "inteqal." Again, the word  "atta" is used to denote all kinds of grants.  The grant may be  of a  license  or of ownership of property.   The  word  "atta" could  be  used  by  a courtier, as a  matter  of  form,  to indicate  anything granted by the Nawab whether it  be  mere permission to live in a house or something more. If  the intention of the Nawab was to grant  ownership,  the language  used to communicate it would not have left  it  in doubt.  It is significant that the plaintiff, who stated  in his  evidence that the gift was meant to have been made  "in lieu of old services", had not mentioned this object of  the

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alleged donation in his plaint.  It is also evident that  he was  not sure of his own rights or position because he  took up  an  alternative case of a gift of the right to  live  in the,  house  for life.  We do not find the word  ’hibba’  or gift used at all in this document.  Nor is the word  "amree" or  any  other  similar word, which  could  connote  a  life estate, used in the document.  There being no mention either of rights of ownership or those of a life-estate holder, the mere  use  of  the  words  "inteqal"  and  "atta"  does  not determine,  as  the learned Judge assumed, what  was  really meant to be granted or transferred.  We think that oral  and other  evidence, besides the document  under  consideration, was both necessary and admissible under Proviso (6) to  Sec. 92 of the Indian Evidence Act to resolve a latent  ambiguity caused by the two vague words used in it and to show how its language was related to the existing facts even if one  were to assume that the information contained in it was meant  to reduce the terms of a grant to the form of writing. Upon the view we are taking of the facts of this case, it is not necessary for us to embark on any detailed discussion of essentials 347 of  a gift under the, Mahomedan law.  It is enough to  point out  that  even  if the rules of Mahomedan law  were  to  be applied  to the transaction before us the very first of  the three   conditions  of  a  valid  gift,  given  in   Mulla’s ’Principles of Mahomedan Law" (16th Edn. p. 141) that of  "a declaration of gift by the donor" is lacking here.  Such  a declaration must indicate, with reasonable clarity, what  is really gifted.  It is also not necessary for us to deal with the distinction between separable gifts of the ’corpus’  and the   ’usufruct’,   recognised  by  Mahomedan   law,   which references to Amjad Khan v. Ashraf Khan(’) and Nawazish  Ali Khan   v.  Ali  Raza  Khan(2)  would  disclose.   After   an examination of all the admissible evidence, relating to  the nature  of  the transaction set up by the  plaintiff,  which should  have  been  considered, we are  satisfied  that  the plaintiff failed to, prove either a grant of the ’corpus’ or of  the ’usufruct’ of the house to him for his life  by  its owner.   The transaction before us would amount  to  nothing more than the grant of a license, revocable at the Grantor’s option to reside in the house so long as the grantor allowed the licensee to do so.  Such a grant is known as "areeat" in Mahomedan  law  (See: Mulla’s Principles of  Mahomedan  Law, Sixteenth  Edition,  page 166).  The terms  of  the  alleged grant,   even  if  they  are  to  be  found  only   in   the communication  sent to the plaintiff, are not, read  in  the context in which they occur, capable of raising an inference of  a larger grant.  The mere expenditure of small  sums  of money  over  necessary repairs, alleged  by  the  plaintiff, could not convert it into an irrevocable license. Consequently,  we allow this appeal and set aside the  judg- ment  and  decree of the High Court.  We do not  think  that this  is  a fit case in which the appellant should  get  the costs  of this litigation as the plaintiff had some  grounds to  be  misled by the communication received  by  him.   The parties will, therefore, bear their own costs throughout. V.P.S.                          Appeal allowed. (1) A. I. R. 1929 P.C. P. 149.  (2) A.I.R. 1948 P.C. p. 134. 348