SYED MOHAMMAD RAZA AND ORS. v. MUHAMMAD ABBAS BANDI BIBI BY - SAMIYA CHOUDHARY
SYED MOHAMMAD RAZA AND ORS. v. MUHAMMAD ABBAS BANDI
BIBI
AUTHORED BY - SAMIYA CHOUDHARY
INTRODUCTION
The
case revolves around the alienation or transfer of property between the Muslim
family governed under their own personal law. The alienation is purported to be
made under family arrangements, which will ensue different procedures. The case
deals with various concepts surrounding the transfer of property, for instance,
that of life interests and restrictions imposed on the alienation, which can be
absolute and partial and thereby void and valid. Presently we have the Transfer
of Property Act, 1882 which governs the property matters in the country and the
provision pertaining to restrictions on alienation is dealt with under
Section 10 of
the act. According to the above-mentioned provisions, where a property is
transferred subject to a limitation or a condition absolutely restraining the
transferee or any person claiming under him from parting with or disposing of
his interest in the property, the condition or the limitation so imposed is
void except in the case of lease where the condition is for the benefit of the
lessor or those claiming under him. Provided that the property may be
transferred to or for the benefit of women (not being a Hindu or Muhammadan or
Buddhist) so that she shall not have the power during her marriage to transfer
or charge the same or her beneficial interest therein. Thus, the section simply
lays down where the property is transferred subject to a condition absolutely
restraining the transferee from parting with his interest in the property; the
condition and not the transfer is void. The condition imposed can be prior or
subsequent to the transfer. The concept pertaining to absolute and partial
restrictions comes into play. The former implies the restrictions are
considered to be void under Section 10 of the Act, while the latter is valid
because it is the restriction that is imposed on the power of alienation, but
the transferee is substantially free to alienate property in a wide
variety of ways. For instance, where a condition that the transferee shall not
transfer the property to any member of a particular. The restrictions so
imposed, whether it is absolute or partial, depend on the real effect of the
condition, i.e., if the effect is absolute, it is void. Since the transferee,
in this case, is a woman, the limitation imposed on her was considered to be
valid considering the concept of Partial and absolute restraints of the
transfer of property. As a result, the current issue centers on the idea of
partial restriction. Additionally, there are exceptions to the act's
requirements for family arrangements; for example, it won't apply to leases,
family settlements, or partitions. Therefore, it is essential to examine the
case's underlying legal concepts and principles in order to fully comprehend
it.
·
In the case, the appellant is Syed
Mohammad Raza, and the Respondent is Musammat Abbas Bandi Bibi. The Judges
include Blanesburgh, Tomlin, Lancelot Sanderson, George Lowndes, and Dinshah
Mullah JJ.
FACTS
OF THE CASE
·
The facts of the case are that in 1868,
a woman named Sughra Bibi was about to be the second wife of Afzal Hussain, the
cousin of Sughra Bibi. They belonged to a Muslim family and were governed by
their personal laws. Sughra Bibi brought the present action against Afzal
Hussain in connection to immovable property.
She claimed her share of that property, which was in his name. The
litigation ended with a compromise between them, and a decree thereby was
passed in the suit in the year 1870. The said compromise was in
the following terms-
·
Whereas between the parties to the
above-mentioned case in which a share is claimed, an amicable settlement has
been arrived at to the effect that the plaintiff's marriage by way of nikah
with the defendant may be performed in the next month, accordingly in view of
the marriage settlement there no longer exists any dispute regarding the share
and in so much as the defendants first wife is alive, it has been settled that
both wives should in accordance with this agreement, in their capacity as wives
be declared as permanent owner, i.e. Malik Mustagil and their named be entered
into public records as the owner of the immovable property. The compromise deed
further provided that, the two women or wives in whose names the property is
about to get transferred shall not have the power to transfer the property to a
stranger, and the ownership of the property shall delve onto their legal heirs
while the management and control of the property will be in the hand of their
husband, i.e. with Mr. Afzal Hussain. Also, if the husband didn’t perform his
duties, the wives can have the remedy only that the management be controlled or
be in the hands of the government through a court of law, and if on
the basis of this compromise agreement, the defendant refuses to marry Sughra
Bibi i.e. the plaintiff, the ownership will remain in her hands.
·
After the said agreement has been made
in writing, the plaintiff and the defendant were duly married. The defendant
died in the year 1872 childless. His first wife also died in the year 1871.
Now, Sughra Bibi was left and she took her share in the property and sold it
before her death, i.e. before 1914. This sale was in contravention to the
compromise deed that was executed between her and her husband. Nevertheless,
her transferees remained in the possession of the property for about 12 years.
·
The said appeal was filed for the case
where the respondents, who are the children of the sister of Mr. Afzal Hussain,
claimed a 2/3rd share of her property from the transferees of Sughra
Bibi, who are appellants in the present case.
CONTENTIONS
OF THE RESPONDENTS
They
contended that Sughra Bibi had only the life estate under the compromise deed
without the power of alienation, and on her death, i.e., in the year 1914, the
half share was passed to her heirs. The remaining part of the share will pass to
other heirs who are also the relatives of Sughra Bibi. They also contended that the use of the word
Malik which was further discussed by the court, doesn’t necessarily imply full
ownership. Having read the compromise deed in entirety, it can be said that the
two wives were only having the life interest with the vested interest in their
legal heirs.
CONTENTIONS
OF THE APPELLANTS
The
appellants in the case contend that the true purpose of the compromise deed was
to give the full ownership to the two wives and the restriction so imposed on
their power of alienation should be considered as repugnant. They relied on the
judgment delivered by Sir Binod Mitter in Raghunath Prasad Singh v Deputy
Commissioner AIR 1929 P.C 283.
They further contended that by reading the compromise deed, it is expressly
provided in the terms of agreement that the two wives will be the Malik
Mustaqil, i.e. the permanent owners of that immovable Property. Moreover their
names were to be entered into public record. They contended that from this, it
is very clear that the draftsman of the document was quite competent to put a
life estate into direct words if that had been the intention of the parties and
if only life estate was intended by parties, the restriction imposed would not
have been confined to the case of strangers.
ISSUES
RAISED
1. Was
the restriction placed by the compromise deed dated 19th September
1870, upon Sughra Bibi’s power of alienation valid and legally enforceable?
2. Whether
such a Partial restriction on alienation is so inconsistent with an otherwise
absolute estate that it must be regarded as repugnant and merely void?
JUDGEMENT
·
The court at the first instance observed
that said restriction of Sughra Bibi’s power of alienation was invalid and
inoperative. The case went to a subordinate judge, whereby, in lieu of other
issues involved, the said action was dismissed. The appeal was filed by
both parties whereby the appeal of the respondents was accepted, while the
appeal of the appellants was dismissed.
·
Baza and Pullan JJ heard the appeal. The
court discussed the meaning of the word Malik used in the deed and interpreted
the personal law under which the parties were governed, i.e. Shia law, and
therefore, came to the conclusion that the said restriction is valid and is
allowed under their personal law.
·
The court observed that the word
stranger used in the restriction imposed under the compromise deed means anyone
other than the family member and the appellants are strangers for that matter.
Thus, the restriction so imposed is considered by the court to be valid as it
is partial in nature and not absolute. This is because the said restriction
only forbids alienation to strangers only and she was free to transfer it to
anyone under the ambit of her family.
·
On the second issue involved in this
case, the court observed that the case referred by the appellants is
of no assistance to this appeal because the restriction imposed in the present
case is partial and not absolute. Moreover, the case revolves around family
settlement and not gift or any conveyance between the parties.
·
The court also referred to Section 3 of
Oudh Laws Act, 1876 which provides that the
courts shall act according to justice, equity and good conscience and TPA, 1882
also provides for Section 10
which doesn’t consider partial restriction in the transfer as void. Therefore,
in view of this, before the passing of the act as well, considering the facts
and circumstances of the case and the principles of justice, equity and good
conscience, the court doesn’t feel the agreement to contain the absolute
restriction and thereby be void. The court interpreted the term Justice equity
and good conscience applied in this case to mean English Law if applied to
Indian society. So, in England as well, partial restriction is not considered
as repugnant,, rather it is considered to be valid, for instance in the case of
In re Macleay 1875 and Gill v. Pearson 6 Nast
173.
Also, in Waghela Rajsanji v. Shekh Masludin
the expression equity, Justice and good conscience was interpreted.
·
Hence, Sughra Bibi has no power or
authority to transfer any part of the properties to the appellants and upon her
death, the legal heirs, i.e. the respondents in the case are entitled to the
two-third share in the properties which she claims.
RATIO
DECIDENDI AND OBITER DICTA OF THE CASE
The
ratio decidendi, i.e., the reasoning upon which the decision of the court is
based, is that the partial restrictions on the power of alienation are valid,
while the obiter of the case is the discussion of the court for the compromise
deed executed between the parties and with regard to the references made by the
court of the case in reference to the term Equity, Justice and Good conscience.
ANALYSIS OF THE CASE
This
case is significant for the issues pertaining to the transfer of property,
where certain types of limitations or restrictions have been imposed on the
power of alienation. Such restrictions can be absolute or partial in nature.
The case acts as a precedent to all the subsequent cases involving partial
restraint, i.e. if the restraint is partial, it will be enforceable and valid,
while if the restraint is absolute in nature, it will be considered to be
repugnant and void. Thus, the significance of the case lies in its interpretation
of property law and how it shapes the legal principles involved. The judgment
delivered by the court in favor of the respondents is absolutely correct with
proper reasoning. This is because in order to identify whether a restriction is
absolute or partial in nature, we can determine it through its real effect. If
such restriction has an absolute effect, it is void, while if it has a partial
effect, it is valid. This means that if it is confined to a particular thing
and the transfer has a wide variety of ways for alienation, it is a partial
restraint and thereby valid and operative under section 10 of the act. Also,
the judgment in favor of the respondents can be substantiated by the fact that
such transfer was made by the husband in favor of the wife under a compromise
deed which expressly mentions the restriction on alienation to a stranger, and
the wife has the power to alienate it under the ambit of her family to anyone.
Thus, under a compromise deed, both the parties mutually agree to that compromise,
and it is very clear that a compromise is drawn with certain conditions, and
hence, the parties are bound by such conditions. Therefore, the respondents are
entitled to their share, and the claims of the transferee of Sughra Bibi over
the property are not valid. In addition to this, Either a sentimental
attachment or the preservation of family esteem and dignity within the
community might be used to support the propriety of such a restriction.
The principle laid down in this judgment has been used in subsequent cases by
the court. For instance, in the case of Gayasi Ram v Shahabuddin,
the court relied on this case and gave two -fold test to determine the partial
restriction on the alienation, i.e. • If the alienation cannot be taken for all
practical purposes, then the transfer shall be deemed to be absolute in nature.
• The mere presence of contingencies wherein a transfer can occur does not
absolutely dissolve the fact that the transfer is total. Also, the case has
been referred in the judgment of K Muniswamy v K Venkataswamy.
Moreover, in the case CanBank Financial Services Ltd. V. The Custodian And. Ors,
the court referred to this judgment. Also, in the famous case of Zoroastrian
Co-operative Housing Society Ltd. V. District Registrar,
the court has used the present case for reference in order to come to a
conclusion. Therefore, there are many
kinds of restraints that can be imposed on alienation, and these are considered
to be partial and, therefore, valid. For instance, the doctrine of first
refusal, i.e., the transferee has to offer the property to the transferor in
case of alienation at the first instance and then, if refused, can sell it to
anyone. Such restriction is held to be partial in nature in the case of Debi
Dayal v. Ghasita. There can be time-based
restraints, i.e., the time frame within which the transfer can be considered to
be void. The kind of restriction in the present case is related to
community-based restriction, where the restriction can be attributed to
sentimental attachment or preservation of family esteem or dignity within the
community.
CONCLUSION
Therefore,
the case is one of the best examples explaining the concept of transfer of
property in cases involving restrictions. It places absolute restriction
under the head void while it tries to reaffirm that the partial restrictions on
the power of alienation are valid and operative. It particularly deals with
case that involves family settlement and where the parties are governed by
their own personal law, i.e., shia law in this case. Thus, the case involves
comprehensive discussions on the legal principles, legal terms, and the role of
personal laws in property matters.
Bibliography
1. Articles:
·
Aditya Vaid, Validity of Partial
Restraint: Explained through the lens of Muhammad Raza v. Abbas Bandi Bibi,
SSRN (August 16, 2023).
·
Rakshit Agarwal, Re-Examining the
Interpretation of Section 10 of the Transfer of Property Act, 1882, SCC
OnLine (December 23, 2022).
2. Cases:
·
Syed Mohammad Raza and Ors.
v. Abbas Bandi Bibi, 1932 S.C.C. Online PC 23.
·
Raghunath
Prasad Singh
v. Deputy
Commissioner, 1929 S.C.C. OnLine PC 283.
·
In re Macleay
1875.
·
Gill
v. Pearson 6 Nast 173.
·
Waghela Rajsanji
v. Shekh Masludin, 56 I.A. 372: 30 LW 619 (P.C.).
·
Gayasi Ram v.
Shahabuddin AIR 1935 All 493.
·
CanBank
Financial Services Ltd.
v. The Custodian And. Ors,
2004, Supp. 4
S.C.R. 60.
·
Zoroastrian
Co-operative Housing Society Ltd. v. District Registrar, Co-op. Societies (Urban)
(2005) 5 SCC 632.
·
Debi
Dayal v.
Ghasita, 1929
SCC OnLine All 409.
3. Statutes
:
·
The
Transfer of Property Act, 1882, S. 10.
·
Oudh
Laws Act, 1876, S.3.
4. Online
Sources:
·
Mohammad Raza and Ors. vs. Abbas Bandi
Bibi, M.A.N.U./P.R/0015/1932.
Mohammad Raza
and Ors. v. Abbas Bandi Bibi, M.A.N.U./P.R/0015/1932.
Rakshit
Agarwal, Re-Examining the Interpretation of Section 10 of the Transfer of
Property Act, 1882, SCC OnLine (December 23, 2022).
