state. It is laid down in the Mooheet,-" Property obtained by gift in perpetuity is considered in the light of an absolute estate." It is stated also in the Mookhtusur-ool Mooheet,-"A person put the following question to Aboo Huneefa:-If a king make a gift of property belonging to the public treasury, to a person considered deserving of it, will the property so given belong absolutely to the donee? He said in reply that the donee would be entitled to enjoy it as his own exclusively. The same person put a second question,-If the donee die, leaving heirs, and after his death the ruling power make a gift of the same property to a third person, is the second gift valid or not? Aboo Huneefa said in reply that the second gift would be null and void." The true interpretation of the above doctrine is to confine it to corporeal property, capable of actual seizin; and not to extend it to property of an incorporeal nature, or fluctuating property, such as the receipt of rents. The rulers of Hindoostan, when they made gifts of lands, executed Furmans or mandates, in which they directed: their officers in the interior to measure the ground, to define the boundaries, and to deliver them in full possession to the donees; but they did not simply give them an assignment of the produce. Accordingly they (the officers) measured the lands situated in the estates of the proprietors, and defining their boundaries, delivered them to the donees, with the consent of the proprietors, deducting the rent of the lands so separated from the settlement made with the proprietors. According to the question it is understood, that the claim of pre-emption made by the Zemindar in this case is founded on the supposition that the Aymahdar is absolute proprietor and (as is common in the part of the country in which this question originated) that he is at liberty to sell or farm the lands as he pleases. Under these circumstances the claim of pre-emption made by the

Refusal to pay the

the seller, pre

defeat the

Zemindar in whose estate the lands are situated is legal and valid, by reason of the vicinity and junction of both estates.

Q. 2. The Shafee or person who has a right to preemption declines to purchase the land at the price demanded by the proprietor, and states that he will not pay for it more than a certain sum, Afterwards the proprietor sells the land to a third person, on receiving his own price. In this case is the Shafee at liberty to bring forward a subsequent claim founded on his right of pre-emption?

R. 2. The claim of the Shafee to the right of preamount de- emption cannot be adduced until after the land has been manded by actually sold to another person, and, from the question, vious to the it appears that the Shafee, before the sale took place, sale, does not and consequently before he was entitled to set up any right of pre- claim to pre-emption, declined to purchase the land, emption. stating that he would not pay more than a certain price for it. Now, as this happened before the sale, and, consequently, before he had any right of pre-emption, his former refusal cannot operate to defeat his claim of pre-emption subsequently preferred; but if, after the sale, he wanted to purchase the ground at the same price which he first offered, and refused to pay the amount which had been agreed upon between the seller and purchaser, such refusal clearly amounts to a renunciation of the right of pre-emption.*

The above question originated in a suit instituted in the Zillah Court of Shahabad, the Law Officer of which Court gave it as his opinion, that the Zemindar was not entitled to pre-emption, assigning as his reason for this opinion, that the Aymah or rent-free lands situated within his estate did not form a fit subject of sale, in as much as the Aymahdar was proprietor only of the Government share, which had been relinquished to him by the ruling power, after deducting the tenth part as the proprietary share; and that therefore he had no right to dispose of the absolute property in the lands, but only of so much of the produce as belonged to him, which did not form a subject on which pre-emption

CHAPTER IV.

PRECEDENTS OF GIFTS.

CASE I.

Q. A person dies, leaving three heirs, and during his life-time he executed a deed of gift, conveying to one of them his entire property to the exclusion of the rest. Is such act allowable; and if allowable, is it requisite that the signature of the two other heirs should be affixed to the deed, and is such testimony indispensable to its validity?

in health and

R. It is allowable for a person to make over all his Of gifts made property by gift to one of his heirs, if, at the time of in sickness. making that gift, the donor was in a state of health and sound disposing mind; and, even though at the time

could be founded. The question having been subsequently referred to the Patna Provincial Court, an opinion in opposition to that of the Sha habad Law Officer was recorded, which induced a reference to the Sudder Dewanee Adawlut. In the reply to the first question, the Law Officers have entered into a disquisition at some length with the view of refuting the opinion that all Royal Grants are necessarily limited in their nature, and of showing that, in some instances, an absolute proprietary right is conferred. This principle seems to be recognized in the regulations of Government, and there is no doubt but that persons pos sessing Royal Grants, confirmed by competent authority, since the Company's accession to the Dewance, as hereditary rent-free tenures, have the same right to dispose of them as other proprietors have, who pay Government Revenue on their estates. The difference of opinion in the present case seems to have originated in the Aymahdars having been considered, on the one hand, as proprietors of so much only of the produce of the estate as would have been the share of Government, had the estate been subjected to the payment of revenue, the proprietary right to the remainder continuing vested in the original proprietor; while, on the other hand, they were considered as having an absolute proprietary right over the whole rent-free tenure, the original proprietor receiving a commutation equal to a tenth part of the produce of the property of which he had been divested, and to which tenth part he would still continue to be entitled into whatever hands the estate passed. The latter opinion seems most consonant to reason and practice. Had the former opinion been held to be the more authentic one, the right of pre-emption would not attach in the case, as then the profits only would have been the subject of sale, and (agreeably to Prin: Shoofaa 3) the right of pre-emption does not apply to moveable property,

he was sick, the gift is valid, provided he subsequently recover from the sickness. But if he died in conse quence of such sickness, the disposition holds good to the extent of a third only, of the donor's property; that is to say, the donee will be entitled to one-third only, and the remaining two-thirds will be distributed among the other heirs.* According to the Hidaya,-" It is to be observed as a general rule that where a person performs with his property any gratuitous deed of immediate operation (that is not restricted to his death), if he be in health at the time, such deed is valid to the extent of all his property; or if he be sick, it takes effect to the extent of one-third of his property. It is also to be remarked, that a sickness of which a person afterwards recovers, is considered in Law, as health, because upon his recovery it is evident that no one else has any right to his property." The testimony of the other heirs is not necessary to the validity of the deed. It is good to all intents and purposes without their evidence, and its authenticity may be established by the depositions of witnesses who are strangers; Witnesses in- besides in no contract is the evidence of witnesses a dispensable necessary condition, except in that of marriage. It is but marriage. merely resorted to for purposes of judicial proof, should it be required.

to no contract

CASE II.

Q. A person makes a formal gift to his wife of a twelve anna share of his landed property, and she, having become seized and possessed thereof, afterwards makes a verbal gift of the whole of it to the wife of her grand-son. Is such gift made ore tenus valid according to Law? And, in virtue of it, can the grand-son's wife take the property so conveyed?

But the donee, being an heir, will not be entitled to one-third even, unless the other heirs consent, see Prin: gifts 11.

lid.

R. Under these circumstances, if the donor separated A verbal gift the landed property disposed of by gift, and put his of land is va wife into complete possession and enjoyment thereof, the gift will be good and valid according to Law. Again if the donee make a verbal gift of the property which she had so acquired, to her grand-son's wife, and put her into possession, such gift must also be upheld as good and valid, provided it be established by the evidence of two men, or one man and two women.*

CASE III.

Q. Is a gift, whether with or without a consideration, or sale of property not distinctly defined and separated from other property, valid or otherwise?

R. The gift, whether with or without a consideration, of undefined gifts and sales. of undefined property, provided it admit of being rendered distinct and separate, is invalid; but the sale of such property is allowable, and holds good as far as the right and title of the seller is concerned: but it cannot affect the interests of parties not privy to the contract.

CASE IV.

Q. 1. A Moosulmaun dies, leaving three wives. By the first wife he had a son and a daughter; by the second wife he had a daughter, and by the third wife a daughter. Before his death he executed a deed of gift of all his property to his three wives, but he had not divided it, or put them into possession. In this case, is the deed above-mentioned valid or not; and under that deed of gift can the heirs of the widows take possession?

* See Prin: Claims 2,