The donor executed a deed of “Arpannama” by making a provision for the donee. Thereby for enjoyment of usufruct of the land gifted but prohibiting any kind of transfer during her life time having reservation therein of heirship if donor’s heirs after donee’s death. Such deed is not a deed of gift, but a gift of usufruct known-in Muslim law as “Ariyat”. There is a distinction between gift (Hiba) and ‘Ariyat’ in Muslim law. Such gift by ‘Arpannama’ is not a gift of corpus, but a gift of usufruct for life, which is permissible as the Muslim law stands today in the sub-continent.
Rebjel Mondal Vs. Didar Mondal & Ors. 3BLT (AD)-83
Muslim Law
Custody of the daughters—of a broken home
The petitioner father claimed custody of both the daughters, alleging that respondent mother had not been looking after the children properly since she had re-married—Held: We have carefully perused the impugned judgment which has at length taken notice of all the facts attending the question of welfare of the two children. The learned Judge in his anxiety also examined the two children in his chamber. The elder daughter clearly made her preference to live with her father and similarly the younger one opted for the mother. It seems from their examinations that both the children have fairly and intelligently
developed their own preferences and keeping in view the subsequent family life of both the petitioner and the respondent, we do not think that the learned Judge of the High Court Division acted wrongly or in detriment to the interest of the children in any way by modifying the decree of the Courts below. We are satisfied that the impugned order will be in the best interest of the girls.
Major (Retd.) Rafiq Hasan Farook Vs. Zeenat Rehana & Ors. 7BLT (AD)-106
Mohammedan Law
A right of pre-emption
A right of pre-emption under the Mohammedan law is a right of substitution and not a right of “repurchase”, entitling the pre-emptor by reason of right of incident to which the sale was subject to stand in the shoes of the vendee in respect of all the rights and obligations arising from the sale under which he has derived his title. It does not, therefore take effect with regard to property which devolved by the right of inheritance, or which has been received in gift without any consideration. Nor does it arise in respect of property failed to another or given in lieu of services rendered or by way of a reward or as a dower to a wife. A person who intends to advance a claimed based on the right of pre-emption in respect of property, which has been sold, to another, must immediately on receiving information of the sale express in explicit terms of his intention to claim the land. In making the demand there must be no delay on the part of the preemptor. The other condition is the pre-emptor should, with
title delay as is possible, repeat before witnesses his demand. Failure to perform the demands in accordance with the requirements of the law would defeat the claim.
Md. Munsur Ali Vs. Md. Kamrul Islam & Ors. 11BLT. (HCD)-70
Mohamedan Law
মোতয়াল্লী এবং সাজ্জাদানসীন গদিনসীনের অপর নাম মোতায়ালী। একজন মোতায়ালীকে ব্যবস্থাপনার দায়িত্ব পালন করতে হয়। এই দায়িত্বটি সাজ্জাদানশীনের দায়িত্ব থেকে পৃথক। সাজ্জাদানসীন মুরীদ কর্তৃক নির্বাচিত হতে পারেন এবং অনুরুপ নির্বাচন স্বীকৃত ও বৈধ।
Sheikh Fariduddin Chisti Vs. Sheikh Nizamuddin Chisti & Ors 13 BLT (HD)114
Muslim Personal Law
Pardanashin lady —transaction involving transfer of Property —question of special onus
The proposition of law relating to special burden of prove in respect of the Heba-bil-ewaz deed in question if considered in the background of the admitted facts that on the self same date Rativan Bibi executed 2 Heba-bil-ewaz deeds, one in favour of the defendant who is the son of Rativan Bibi’s deceased daughter Rokeya and another in favour of Rativan Bibi’s daughter Rahela and that as no exception was taken in respect of the Heba-bil-ewaz deed in the name of Rativan Bibi’s daughter Rehela conclusion can safely be arrived at that Rativan Bibi executed the Heba deed in favour of his grandson through her daughter at the relevant time deceased and in favour of her another daughter totally of her own free will and she (Rativan Bibi) executed the deed being fully aware of the contents thereof and the nature of the transaction as deposed by the D.Ws.2 and 6 in respect of whom hardly any exception legally sustainable can be taken. It is seen from the judgment of the High Court Division that while the said Division considering the transaction in question in favour of the defendant referring to the concept of special onus with regard to a transaction entered into by a pardanashin lady failed to consider the material fact that Rativan Bibi on the same date executed 2 (two) documents, one in favour of the defendant and other in favour of her daughter Rahela and registered the same subsequently on the same date, but taking exception only in respect of the transaction in respect of the defendant. It has already been mentioned that the defendant has established by the evidence of D.Ws.2 and 6, that Rativan Bibi, the grandmother of the defendant executed the document in favour of the defendant after being aware of the nature of the transaction.
Mustafizur Rahman Vs. Md. Amjad Hossain 16 BLT (AD)104
Heba -bit- ewaz deed — Product of fraud or undue influence —Burden of proof
The plaintiff has filed the suit alleging fraud in bringing into existence the deed in question. The law is now settled that one who alleges fraud for setting particular transaction, the burden lies on him —That the transaction in question was not the product of fraud or undue influence is evident from the fact as stated hereinbefore, that Rativan Bibi on the same date executed 2 Heba-bil-ewaz deed, one in favour of the defendant and another in favour of her daughter and later on registered the said deeds on the same date, but taking exception only in respect of the transaction made in favour of the defendant. Had the transactions were the product of fraud, coercion or undue influence or had the transactions been not the product of Rativan’s free will and that had the Heba-bil-ewaz deeds were not executed and registered by her without understanding the nature of the transaction and of being unaware of the contents of the documents, Rativan Bibi would in the normal course of conduct and behavior have taken exception to both the transactions instead of that she is taking exception only in respect, of one transaction i.e. the transaction which was made in favour of the defendant and this shows lack of bonafide on her part and that she being influenced by some other interested persons, as contended by the defendant by the sons of Amzad, one of the sons of Rativan
Bibi, instituted the suit.
Mustafizur Rahman Vs. Md. Amjad Hossain 16 BLT (AD)104
Muslim Family Law Custody of the Minor girl aged about 4 years
Admittedly under the principle of Mohammadan Law, Hijanat of a minor daughter naturally devolves upon mother and maternal grand-mother to the exclusion of the father and his mother. The welfare of the minor daughter is the paramount consideration in the matter of allowing custody. But in case of female child the mother is entitled to natural custody of the minor girl until and unless the mother acquired disqualification, the custody of minor daughter is usually given to the mother who serve the welfare of the minor most than other relations including the father and the grand-mother and grand-father.
George Bin Shams Vs. Amir Ali Chowdhury and Ors. 13BLT(AD)155.