Kidwai, J. - (1.) On 25-1-1941, Tajju Khan, plff. executed a deed of gift in favour of Mazhar Khan, deft. who is his own brother & delivered possession of the property to the donee. Subsequently plff. instituted the suit out of which this appeal arises to obtain possession of the gifted property by, among other things, revocation of the deed of gift. The deft, pleaded that the gift was not revocable. The trial Court accepted the plff's, claim & decreed the suit. On appeal, the learned Civil Judge of Fyzabad held that the parties were within the prohibited degrees of relationship & that, consequently, the gift could not be revoked. He accordingly allowed the appeal & dismissed the suit. The plff. has now come up in second appeal.
(2.) The only contention pressed by Mr. Hyder Husain, for the appellant, was that the donor & the donee being both of the same sex could not be said to be related within the prohibited degrees & that, therefore, the gift was revocable. The only case relating to this point which was placed before me was that of Ghulam Mohammad v. Din Mohammad, A. I. R. (23) 1936 Pesh 208 in which a Bench composing the Judicial Commissioner & the Additional Judicial Commissioner held that there was no impediment to the revocation of a gift made by a person to his sister's son. The question was, however, not discussed & proceeded on the basis of a passage of Mulla's Muhammadan Law, which is ambiguous--the ambiguity not being noticed by tbe learned Additional Judicial Commissioner who pronounced the judgment. Moreover, no notice is taken of an illustration given by Mulla which militates against the decision. Mr. Hyder Husain, therefore, placed before me modern text books as well as the original authorities of Muslim Jurists.
(3.) In Hamilton's translation of the Hidaya vide Edn. 2 by Grady, p. 487--it is stated : "If a person make a gift of anything to his relation within the prohibited degrees, it is not lawful for him to resume it, because the prophet has said ; 'when a gift is made to a prohibited relation, it mast not be resumed--& also because the object of the gift is an increase in the ties of affinity, which is thereby obtained." The following passage occurs in Baillies Digest of Mohammadan Law "Book VIII, Chap. IV". "Gifts are of several kinds, some being to relations within the prohibited degrees, some to strangers, some to relatives who are not within the prohibited degrees, & some to person who are prohibited but are not relatives. All may be revoked before delivery to the donee, whether he were present or absent at the time of the gift, & whether he were permitted to take possession or not. But after delivery, the donor has no right of revocation, when the gift is to a relation within the prohibited degrees . . . ." (As will presently appear this is but a translation of the relevant passage of the Fatwa Alamgiri).;