Muslim Law

 

 

Muslim Law

 

Muslim Law

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 donors heirs after donees death. Such deed is not a deed of gift, but a gift of usufruct knownin Muslim law as ‘Ariyat”. There is a distinction between gift (Hiba) and Arlyat’ 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. [Paras-10, 11, 12 & 16]

Rebjel Mondal Vs. Didar Mondal & Ors. 3 BLT (AD)-83.

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 modi1ring the decree of the Courts below, We are satisfied that the impugned order will be in the best interest of the girls. [Para-6]

Major (Retd.) Rafiq Hasan Farook Vs. Zeenat Rehana & Ors 7 BLT (AD)-106.

Muslim Law

Muslim Law

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.