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Mohammedan Law – Conditional Gift – Life Estate – Transfer of Corpus but not usufruct – any condition not to alienate is void – Husband executed gifted to the wife with full rights of enjoyments – with out reserving his right to cancel and his successors have not right to challenge the same – but the condition is only that after her death it shall devolve on her children – husband died – she enjoyed the same – later she sold the same to the appellant – trial court decreed the suit – appeal court reversed the same – High court confirm the same but Apex court held that the gift is valid – condition is in valid – the sale deed infavour of appellant is also valid and as such the claim of children of donor is not maintainable = CIVIL APPEAL No.2364 OF 2005 V. SREERAMACHANDRA AVADHANI (D) BY L.RS. …….APPELLANTS VERSUS SHAIK ABDUL RAHIM & ANR. ……RESPONDENTS = 2014 Aug. Part. – http://judis.nic.in/supremecourt/filename=41834

Mohammedan Law – Conditional Gift – Life Estate – Transfer of Corpus but not usufruct – any condition not to alienate is void – Husband executed gifted to the wife with full rights of enjoyments – with out reserving his right to cancel and his successors too have not right to challenge the same – but the condition is only that after her death it shall devolve on her children – husband died – she enjoyed the same – later she sold the same to the appellant – trial court decreed the suit – appeal court reversed the same – High court confirm the same but Apex court held that  the gift is valid – condition is in valid – the sale deed infavour of appellant is also valid and as such the claim of children of donor is not maintainable =

In the  notice,  the  respondents

asserted, firstly, that Banu Bibi had only a life  interest  in  the  gifted

immovable  property;  

and  secondly,  the  respondents   being   the   legal

representatives of Sheikh Hussein (who had gifted the immovable property  to

Banu Bibi) came to be vested with  the  right  and  title  over  the  gifted

immovable  property,  after  the  demise  of   Banu   Bibi.    

The   vendee,

V.Sreeramachandra Avadhani repudiated  the  assertions  made  in  the  legal

notice dated 22.03.1989, through his response dated 16.04.1989.=

The Principal Senior  Civil  Judge,  Eluru,  West  Godavari  District,

Andhra Pradesh dismissed the original suit on 19.08.1998.   

Relying  on  the

judgment rendered by the Privy Council in Nawazish  Ali  Khan  v.  Ali  Raza

Khan, AIR 1948 PC 134, the trial court arrived at the conclusion,  that  the

gift deed executed by Sheikh Hussein on  26.04.1952  transferring  immovable

property in favour of his wife Banu Bibi, was valid. 

It was also  concluded,

that the gifted immovable property came to  be  irrevocably  vested  in  the

donee Banu Bibi.  

That apart, the trial court held, that Sheikh Hussein  had

gifted the corpus of the immovable property to his wife  Banu  Bibi.   

Based

on the  aforesaid,  it  was  further  concluded,  that  all  the  conditions

expressed by the donor Sheikh Hussein, in the gift  deed  dated  26.04.1952,

depriving the donee of an absolute right/interest in  the  gifted  property,

were void. 

The trial court clearly  expressed,  that  the  gift  deed  dated

26.04.1952, was not in the nature of a usufruct.= 

On the subject of  “conditional

gifts”,  the  fundamentals/principles  of  Muhammadan  Law  as   have   been

explained in the treatise are extracted hereunder:

            “Gifts with conditions

             In hiba the immediate and absolute ownership in  the  substance

or corpus of a thing is transferred to  a  donee;  hence  where  a  hiba  is

purported to be made with conditions or restrictions annexed as to  its  use

or disposal, the conditions and  restrictions  are  void  and  the  hiba  is

valid.  The Fatawa Aamgiri says:

            All ‘our’ masters are agreed that when one has made a  gift  and

stipulated for a condition that is fasid or invalid, the gift is  valid  and

the condition void.  It is a general  rule  with  regard  to  all  contracts

which  require  seisin,  such  as  gift  and  pledge,  that  they  are   not

invalidated by vitiating conditions.

            Examples:-

D makes a hiba of a house for the residence of  the  donee  and  his  heirs,

generation after generation, declaring that if the donee sells or  mortgages

it the donor or his heirs will have a claim on the house but not  otherwise.

The donee takes an absolute estate both in Hanafi and in Ithna Ashari Law.

D makes a hiba on condition that he has an option  of  cancelling  the  hiba

within three days. The hiba is valid and the option void.

A makes a gift of government promissory notes  to  B  on  condition  that  B

should return one-fourth  part  of  the  notes  to  A  after  a  month.  The

condition relates to a return of part of the corpus. The condition  is  void

and the gift is valid.

A makes a hiba of certain property to B.  The deed of  gift  lays  down  the

condition that B shall not transfer the  property.   The  restraint  against

alienation is void and B takes the property absolutely.”

                                  (emphasis is ours)

Reliance  was  also  placed  on  “Mulla’s  Principles  of   Mahomedan   Law”

(nineteenth edition, by M.Hidayatullah  and  Arshad  Hidayatullah)  and  our

attention was drawn to the following narration:

            “Gift with a condition.- When  a  gift  is  made  subject  to  a

condition which derogates from the completeness of the grant, the  condition

is void, and the gift will take effect as if no conditions were attached  to

it(s).

            “All our masters are agreed that when one has made  a  gift  and

stipulated for a condition that is fasid or invalid, the gift is  valid  and

the condition is void”.

 “Digest

of Moohummudan Law”,  by  Neil  B.E.Baillie  (part  first,  second  edition,

London: Smith, Elder & Co., 1875). The relevant extract of the  text  relied

upon is being reproduced hereunder:

            “Gift is of two kinds, tumleek (already described),  and  iskat,

which means literally, `to cause to fall’, or extinguish. The legal  effects

of gift are-1st. That it establishes a  right  of  property  in  the  donee,

without being obligatory on the donor; so  that  the  gift  may  be  validly

resumed or cancelled.  2nd. That it cannot be made subject to  a  condition;

though if a gift were made with an option to the donee for three  days,  and

were accepted before the separation of the parties, it would be valid.   And

3rd That it is not cancelled by vitiating conditions; so that if one  should

give his slave on condition of his being  emancipated,  the  gift  would  be

valid, and the condition void.”=

 Firstly, 

the donor records, having purchased the gifted  property  from  his

own earning on 16.07.1944, through a registered purchase  deed,  whereby  he

was vested with the absolute  right  of  possession  and  enjoyment  of  the

property. 

It is then asserted, that  there is no dispute about the title  of

the donor, over the gifted property.  

All the above  rights  in  the  donor,

are sought to be transferred by way of gift to Banu Bibi  by  asserting,  “I

am conveying in your favour as you are my wife and out of love  to  you  and

delivered possession of the same to you  forthwith,  From  now  onwards  you

shall  enjoy  This  immovable  property  freely…..”  

The   words   extracted

hereinabove clearly establish the transfer of the corpus, which was  in  the

absolute ownership of the donor, to the donee.

Secondly, the use of the words “We  shall  have  no  right  to  cancel  this

conveyance with silly reasons” also reveals, the intention of the  donor  to

transfer the corpus of the property, to the donee.

Thirdly, the use of the words “Neither myself nor my successors shall  raise

any objection in respect of this conveyed property  either  against  you  or

against your successors”, recognises the rights of the donee as well as  her

successors.  

These words extinguish, not only  the  donor’s  rights  in  the

property, but also that of his  successors.  

There  is  recognition  of  the

rights of the donee and her successors to the extent,  that in the event  of

transfer of the gifted property to the successors of  the  donee,  the  same

would not  be assailable by the donor or his successors. 

This also  depicts,

the intention  of  the  donor  to  transfer  the  corpus   of   the   gifted

property.

Fourthly, the gift deed records that “…..after your life time this  property

shall devolve upon your off spring…..”

The  use  of  the  words  “your  off 

spring”, expresses an intention which is separate  and  distinct  from  “our

off spring”.  

In other words, the gift deed  contemplates  the  transfer  of

the gifted property by the donee, to her children, even  if,  such  children

were not the children of the donor.  

This too shows that  the  intention  of

the donor, contemplated the transfer of the corpus.

Fifthly, the gift deed records “I am herewith filing transfer  memos,  along

with this deed for  registration,  to  get  your  name  mutated  in  revenue

records. Therefore from now on wards you shall pay the  Municipal  Taxes  and

shall enjoy the same freely and  happily.”   

This  expression  in  the  gift

deed, brings out the intention of  the  donor,  that  the  transfer  of  the

gifted property should not remain  a  matter  of  understanding  within  the

family, but should be an open declaration to the public.  

The  assertion  in

the gift deed, that Municipal Taxes will be borne by the donee,  shows  that

the donee was to henceforth bear all liabilities of the gifted property,  as

its owner.

Lastly, the handing over of the earlier title deeds of the  gifted  property

to the donee, by recording in the gift deed that “I  have  handed  over  the

link sale deed and the voucher  to  you”  also  indicates,  that  the  donor

clearly expressed in the gift deed, that he had not retained  any  documents

of title pertaining to the gifted property  with  himself,  but  had  handed

over the same to the donee.  

This also shows the intention of the  donor  to

relinquish all his existing rights,  in  the  gifted  property.   

This  also

shows the intent of the donor, to transfer the corpus  of  the  property  to

the donee.

For the reasons recorded hereinabove, there can  be  no  doubt   whatsoever,

that the intention of the donor in the gift deed dated  26.04.1952,  was  to

transfer the corpus of the immovable property to the donee, and  not  merely

a usufruct therein.

17.   Having concluded that the donor Sheikh Hussein through the  gift  deed

dated 26.04.1952, had transferred the corpus of the  immovable  property  to

his wife Banu Bibi, it is natural to conclude that the  gift  deed  executed

in favour of Banu Bibi, was valid.  

Likewise, while applying the  principles

of Muhammedan Law expressed in recognized texts, and  the  decision  of  the

Privy Council in Nawazish Ali Khan’s case (supra) it is inevitable to  hold,

that all conditions depicted  in  the  gift  deed  dated  26.04.1952,  which

curtail use or disposal of the property gifted are to be  treated  as  void.

In the above view of the matter, the conditions depicted in the  gift  deed,

that the donee would  not  have  any  right  to  gift  or  sell  the  gifted

property, or that the donee would be precluded from  alienating  the  gifted

immovable  property  during  her  life  time,  are  void.   

Similarly,   the

depiction in the gift deed, that the gifted  immovable  property  after  the

demise of the donee, would devolve upon her off spring and in the  event  of

her not bearing any children, the same would return back to the donor or  to

his successors, would likewise be void.

18.   Having held that the gift deed  dated  26.04.1952  irrevocably  vested

all rights in the immovable property in Banu Bibi, it is natural for  us  to

conclude, that the sale of the gifted immovable property  by  Banu  Bibi  to

V.Sreeramachandra   Avadhani   on   02.05.1978,   was   legal   and   valid.

Consequently, the claim of the respondents to the gifted  property,  on  the

demise of Banu Bibi on 17.02.1989, is not sustainable in law.

19.   For the reasons recorded hereinabove, the instant appeal  is  allowed.

The order passed by the  trial  court  dated  19.08.1998  is  affirmed.  The

orders passed by the First Appellate Court  dated  05.01.2004,  and  by  the

High Court dated 02.08.2004, are set aside.

20.   There shall be no order as to costs.

2014 Aug. Part. – http://judis.nic.in/supremecourt/filename=41834

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.2364 OF 2005

V. SREERAMACHANDRA AVADHANI (D) BY L.RS. …….APPELLANTS

VERSUS

SHAIK ABDUL RAHIM & ANR. ……RESPONDENTS

J U D G M E N T

Jagdish Singh Khehar, J.

1. Heard learned counsel for the parties.

2. Sheikh Hussein was married to Banu Bibi. During the subsistence of
his matrimonial ties, Sheikh Hussein executed a gift deed on 26.04.1952,
whereby a “tiled house” with open space in Survey No.883 in Eluru town,
West Godavari District, Andhra Pradesh was gifted in favour of his wife
Banu Bibi.

3. It is not a matter of dispute, that Banu Bibi enjoyed the immovable
property gifted to her, during the lifetime of her husband Sheikh Hussein.
Sheikh Hussein died in 1966. Even after the demise of Sheikh Hussein, Banu
Bibi continued to exclusively enjoy the said immovable property. On
02.05.1978, Banu Bibi sold the gifted immovable property, to
V.Sreeramachandra Avadhani. The vendee V.Sreeramachandra Avadhani is the
appellant before this Court (through his legal representatives).

4. Banu Bibi died on 17.02.1989. On her demise, the respondents before
this Court – Shail Abdul Rahim and Shaik Abdul Gaffoor issued a legal
notice to the vendee. Through the legal notice, they staked a claim on the
abovementioned gifted immovable property. In the notice, the respondents
asserted, firstly, that Banu Bibi had only a life interest in the gifted
immovable property; and secondly, the respondents being the legal
representatives of Sheikh Hussein (who had gifted the immovable property to
Banu Bibi) came to be vested with the right and title over the gifted
immovable property, after the demise of Banu Bibi. The vendee,
V.Sreeramachandra Avadhani repudiated the assertions made in the legal
notice dated 22.03.1989, through his response dated 16.04.1989.

5. Having realized that the vendee would not part with the immovable
property purchased by him from Banu Bibi, the respondents preferred a suit
bearing O.S.No.256 of 1989, before the Subordinate Judge, Eluru, West
Godavari District, Andhra Pradesh. In the suit, the respondents sought a
declaration of title, over the “tiled house” with open space, gifted by
Sheikh Hussein to his wife Banu Bibi. In addition, the respondents sought
recovery of possession, and also mesne profits, from the vendee
V.Sreeramachandra Avadhani. The above Original Suit filed on
13.11.1989 was contested. A written statement was filed on
19.07.1990.

6. The Principal Senior Civil Judge, Eluru, West Godavari District,
Andhra Pradesh dismissed the original suit on 19.08.1998. Relying on the
judgment rendered by the Privy Council in Nawazish Ali Khan v. Ali Raza
Khan, AIR 1948 PC 134, the trial court arrived at the conclusion, that the
gift deed executed by Sheikh Hussein on 26.04.1952 transferring immovable
property in favour of his wife Banu Bibi, was valid. It was also concluded,
that the gifted immovable property came to be irrevocably vested in the
donee Banu Bibi. That apart, the trial court held, that Sheikh Hussein had
gifted the corpus of the immovable property to his wife Banu Bibi. Based
on the aforesaid, it was further concluded, that all the conditions
expressed by the donor Sheikh Hussein, in the gift deed dated 26.04.1952,
depriving the donee of an absolute right/interest in the gifted property,
were void. The trial court clearly expressed, that the gift deed dated
26.04.1952, was not in the nature of a usufruct.

7. Dissatisfied with the order passed by the trial court, the
respondents preferred an appeal before the Second Additional District
Judge, Eluru, West Godavari District, Andhra Pradesh. The First Appellate
Court accepted the appeal preferred by the respondents on 05.01.2004. On
the issue whether Banu Bibi had an absolute right over the “tiled house”
with open space, gifted to her, the First Appellate Court recorded its
finding on the basis of the text of the gift deed, dated 26.04.1952. The
consideration recorded by the First Appellate Court is being extracted
hereunder:
“13. It is the bounden duty of the plaintiffs to prove that,
they have inherited the property as the legal heirs of Shaik Hussain Saheb,
as his wife has no right to alienate the property Exs. A-1 and B-5 which is
one and the same document is the crucial document to determine the main
issue in this suit. A perusal of the said document clearly shows the fact
that in the said settlement deed dated 26-4-1952 which was executed by
Shaik Hussain Sahab in favour of his wife Bhanubibi he has specifically
mentioned that, she has no right to alienate the property and she can enjoy
the property as she likes and after her death it would devolved upon her
children if she has got children and if she has not children, the heirs of
Shaik Hussain Saheb would inherit the same. It is clearly mentioned in the
said documents as follows:

“During your life time you shall not alienate this property in
favour of any body and after your life time this property shall devolve
upon your off spring and if you have no children the same shall return back
to me or to my near successors with absolute rights of enjoyment and
dispossession by way of gift, sale etc.”

This recital itself shows that, Bhanubibi has no right to
alienate the plaint schedule property and she has right to enjoy the same
throughout her life only and after her death, it would devolve upon her
children if she got children and in the absence of children, it would
revert back to her husband Shaik Hussain Saheb and Bhanubibi has no
children. Further admittedly
Shaik Hussain Saheb died earlier to Bhanubibi. Further admittedly the
plaintiffs are the legal heirs of Shaik Hussain Saheb. As per the above
settlement deed, the plaintiffs are the rightful owners of the plaint
schedule property. Further though it is contended by the defendant that
for some other property Shaik Hussain Saheb executed a will and the
plaintiffs filed a suit which was dismissed, the said facts are not
applicable to the facts of this case and the cause of action and the
property involved are different in the suit and further the 1st defendant
has not filed any document of the said to confirm his right. Hence this
Court holds that, the plaintiffs are the absolute owners of the property
and they are entitled for declaration of the suit schedule property. Hence
this issue is decided in favour of the plaintiffs and against the
defendants.”

(emphasis is ours)

A perusal of the judgment rendered by the First Appellate Court reveals,
that the appeal was adjudicated, as if the controversy was in the nature of
a disputed question of fact, without appreciating the legal implications
pertaining to gift, under Muhammedan Law. While determining the
controversy, the First Appellate Court did not examine whether the gift
dated 26.04.1952, constituted transfer of the corpus of the property, or
merely its usufruct. The First Appellate Court, without any reference to
the judgment of the Privy Council relied upon by the trial court, while
interpreting the text of the gift deed dated 26.04.1952, arrived at the
conclusion, that Banu Bibi had merely been transferred a life interest in
the “tiled house” with open space, gifted to her on 26.04.1952.

8. Dissatisfied with the judgment rendered by the First Appellate Court,
the vendee V.Sreeramachandra Avadhani preferred an appeal before the High
Court of Judicature of Andhra Pradesh, at Hyderabad (hereinafter referred
to as the `High Court’). The High Court while disposing of the Second
Appeal No.313 of 2004 on 02.08.2004 affirmed the determination recorded by
the First Appellate Court. The operative part of the order of the High
Court, on the nature and effect of the gift deed dated 26.04.1952, is being
extracted hereunder:
“Considering the submissions made and also on perusal of the
material, the question which falls for consideration in this appeal is, as
to whether Bhanubibi is wife of Shaik Hussain Saheb, who was admittedly the
owner of the properties, and had any alienable rights in terms of the
settlement deed executed on her favour on 26-04-1952 and consequently the
sale in favour of the appellant is valid. Necessarily, these questions
call for the consideration of the terms and conditions of the settlement
deed and interpretation thereof, which no doubt is a factual matrix. There
cannot be any dispute in regard to the terms as contained in the said
settlement deed. The lower Appellate Court did taken into consideration
the restriction imposed on her and being they having no children of
themselves and the plaintiffs being the only heirs, it was held that there
could not have been sale in favour of the appellant. Having regard to the
terms as contained therein and which has rightly taken into consideration
by the lower Appellate Court, I do not find any illegality or perversity in
regard to the approach made by the lower Appellate Court in considering the
terms of the said settlement deed.”

(emphasis is ours)

A perusal of the consideration recorded by the High Court reveals, that the
High Court also did not examine the nature and effect of the gift. It did
not take into consideration, whether the gift was in respect of the corpus
of the immovable property, or its usufruct. The High Court also did not
take into consideration, the judgment rendered by the Privy Council in
Nawazish Ali Khan’s case (supra)(which was relied upon by the trial
court). The controversy was again disposed of, on the basis of a literal
interpretation of the terms and conditions expressed in the gift deed
(dated 26.04.1952).

9. Having lost before the First Appellate Court, as also, before the
High Court, the legal representatives of the vendee approached this Court
by filing Special Leave to Appeal (Civil) No.22023 of 2004. Leave was
granted by this Court on 01.04.2005.

10. We have heard learned counsel representing the rival parties.
During the course of hearing, learned counsel for the appellants placed
reliance, on the different aspects of Muhammadan Law on the subject of
gifts (hiba). In this behalf reference was first of all placed on “Asaf
A.A.Fyzee Outlines of Muhammadan Law”, (fifth edition, edited and revised
by Tahir Mahmood, Oxford University Press). On the subject of “conditional
gifts”, the fundamentals/principles of Muhammadan Law as have been
explained in the treatise are extracted hereunder:
“Gifts with conditions

In hiba the immediate and absolute ownership in the substance
or corpus of a thing is transferred to a donee; hence where a hiba is
purported to be made with conditions or restrictions annexed as to its use
or disposal, the conditions and restrictions are void and the hiba is
valid. The Fatawa Aamgiri says:

All ‘our’ masters are agreed that when one has made a gift and
stipulated for a condition that is fasid or invalid, the gift is valid and
the condition void. It is a general rule with regard to all contracts
which require seisin, such as gift and pledge, that they are not
invalidated by vitiating conditions.
Examples:-
D makes a hiba of a house for the residence of the donee and his heirs,
generation after generation, declaring that if the donee sells or mortgages
it the donor or his heirs will have a claim on the house but not otherwise.
The donee takes an absolute estate both in Hanafi and in Ithna Ashari Law.

D makes a hiba on condition that he has an option of cancelling the hiba
within three days. The hiba is valid and the option void.

A makes a gift of government promissory notes to B on condition that B
should return one-fourth part of the notes to A after a month. The
condition relates to a return of part of the corpus. The condition is void
and the gift is valid.

A makes a hiba of certain property to B. The deed of gift lays down the
condition that B shall not transfer the property. The restraint against
alienation is void and B takes the property absolutely.”
(emphasis is ours)

Reliance was also placed on “Mulla’s Principles of Mahomedan Law”
(nineteenth edition, by M.Hidayatullah and Arshad Hidayatullah) and our
attention was drawn to the following narration:
“Gift with a condition.- When a gift is made subject to a
condition which derogates from the completeness of the grant, the condition
is void, and the gift will take effect as if no conditions were attached to
it(s).

“All our masters are agreed that when one has made a gift and
stipulated for a condition that is fasid or invalid, the gift is valid and
the condition is void”.

Gift of a life-estate.-Life estates were considered to come
under this principle with the result that the donee took an absolute
interest. But in Amjad Khan’s case (1929) 56 I.A.213, 4 Luck.305 the
Judicial Committee did not regard the principle as applicable to the facts.
See sec.55 and the cases there cited. “An amree (life grant) is nothing
but a gift and a condition; and the condition is invalid; but the gift is
not rendered null by involving an invalid condition”. Hedaya, 489. In a
later case the Privy Council (Nawazish Ali Khan v. Ali Raza Khan (1948) 75
I.A.62, (48) A.PC.134) observed that there was no such thing as life estate
or vested remainder in Mahomedan Law as understood in English Law, but a
gift for life would be construed as an interest for life in the usufruct.

`Life estate’ in the sense, that is, the transfer of the
ownership of the property itself limited to the life of the donee, with a
condition that the donee would have no right of alienation is not
recognised by Mahomedan Law. But the view that once prevailed to the
effect, that under the Mahomedan Law, a life interest with such a condition
is nothing but a gift with a repugnant condition, when the condition must
fail and the gift must prevail as an absolute one, is no longer good law in
view of later decisions of the Privy Council.”

(emphasis is ours)

It would be pertinent to mention, that our attention was not invited to any
contrary legal view, expressed either by the Privy Council, or by any other
Court.

11. Learned counsel for the appellants also placed reliance on a “Digest
of Moohummudan Law”, by Neil B.E.Baillie (part first, second edition,
London: Smith, Elder & Co., 1875). The relevant extract of the text relied
upon is being reproduced hereunder:
“Gift is of two kinds, tumleek (already described), and iskat,
which means literally, `to cause to fall’, or extinguish. The legal effects
of gift are-1st. That it establishes a right of property in the donee,
without being obligatory on the donor; so that the gift may be validly
resumed or cancelled. 2nd. That it cannot be made subject to a condition;
though if a gift were made with an option to the donee for three days, and
were accepted before the separation of the parties, it would be valid. And
3rd That it is not cancelled by vitiating conditions; so that if one should
give his slave on condition of his being emancipated, the gift would be
valid, and the condition void.”
(emphasis is ours)

A perusal of the above text inter alia reveals, that under Muhammadan Law,
a gift has to be unconditional. Therefore, conditions expressed in a gift,
are to be treated as void. A conditional gift is valid, but the conditions
are void.

12. Learned counsel for the appellants then invited our attention to
another part of the “Digest of Moohummudan Law” by Neil B.E.Baillie,
dealing with “of the effect of a condition in the gift”. The text relied
upon is being reproduced hereunder:
“When a slave or a thing is given on a condition that the donee
shall have an option for three days, the gift is lawful if confirmed by him
before the separation of the parties; and if not confirmed by him till
after they have separated, it is not lawful. But when a thing is given on
a condition that the donor shall have an option for three days, the gift is
valid, and the option void; because gift is not a binding contract, and
therefore does not admit of the option of stipulation. A person says to
another, `I have released thee from my right against thee, on condition
that I have an option,’ the release is lawful, and the option void.

A man to whom a thousand dirhems are due by another says to
him, `When the morrow has come the thousand is thine,’ or `thou art free
from it,’ or `When thou hast paid one-half the property then thou art free
from the remaining half,’ or `the remaining half is thine,’ the gift is
void.’ But if he should say, `I have released you on condition that you
emancipate your slave,’ or `Thou art released on condition of thy
emancipating him by my releasing thee,’ and he should say, `I have
accepted,’ or `I have emancipated him,’ he would be released from the debt.

All `our’ masters are agreed that when one has made a gift and
stipulated for a condition that is fasid, or invalid, the gift is valid and
the condition void; as if one should given another a female slave, and
stipulate `that he shall not sell her,’ or `shall make her an com-i-wulud,’
or `shall sell her to such an one,’ or `restore her to the giver after a
month,’ the gift would be valid, and all the conditions void’. Or if one
should give a mansion, or bestow it in alms, on condition `that the donee
shall restore some part of it,’ or `give some part of it is iwuz, or
exchange,’ the gift would be lawful and the condition void.’ It is a
general rule with regard to all contracts which require seisin, such as
gift and pledge, that they are not invalidated by vitiating conditions.”

(emphasis is ours)

The above text also leads to the same inferences as have been drawn above.

13. Having placed reliance on different commentaries noticed above,
learned counsel for the appellants invited our attention to the decision
rendered by the Privy Council in Nawazish Ali Khan’s case (supra). It was
the vehement contention of the learned counsel for the appellants, that the
texts brought to our notice by him, were expressly approved, in the above
judgment. Learned counsel placed reliance on the following observations,
from the decision of the Privy Council in Nawazish Ali Khan’s case (supra):

“19 The Chief Court in appeal took the view that under the wills of
Nasir Ali Khan the estate vested after his death in the three successive
tenants for life; that on the exercise of the power of appointment it would
pass immediately to the appointee; that there was no period during which
the estate would be in abeyance; and that the rights of the heirs of the
testator were not affected or prejudiced. In their Lordships opinion this
view of the matter introduces into Muslim law legal terms and conceptions
of ownership familiar enough in English law, but wholly alien to Muslim
law. In general, Muslim law draws no distinction between real and personal
property, and their Lordships know of no authoritative work on Muslim law,
whether the Hedaya or Baillie or more modern works, and no decision of this
Board which affirms that Muslim law recognises the splitting up of
ownership of land into estates, distinguished in point of quality like
legal and equitable estates, or in point of duration like estates in fee
simple, in tail, for life, or in remainder. What Muslim law does recognise
and insist upon, is the distinction between the corpus of the property
itself (ayn) and the usufruct in the property (manafi). Over the corpus of
property the law recognises only absolute dominion, heritable and
unrestricted in point of time; and where a gift of the corpus seeks to
impose a condition inconsistent with such absolute dominion the condition
is rejected as repugnant; but interests limited in point of time can be
created in the usufruct of the property and the dominion over the corpus
takes effect subject to any such limited interests.

“If a person bequeath the service of his slave, or the use of his house,
either for a definite or an indefinite period, such bequest is valid;
because as an endowment with usufruct, either gratuitous or for an
equivalent, is valid during life, it is consequently so after death; and
also, because men have occasion to make bequests of this nature as well as
bequests of actual property. So likewise, if a person bequeath the wages of
his slave, or the rent of his house, for a definite or indefinite term, it
is valid, for the same reason. In both cases, moreover, it is necessary to
consign over the house or the slave, to the legatee, provided they do not
exceed the third of the property in order that he may enjoy the wages or
service of the slave, or the rent or use of the house daring the term
prescribed, and afterwards restore it to the heirs.” (Hedaya, Vol.4, p.527,
chap.5, entitled “Of Usufructuary Will.”)

This distinction runs all through the Muslim law of gifts-gifts of the
corpus (hiba), gifts of the usufruct (ariyat) and usufructuary bequests. No
doubt where the use of a house is given to a man for his life he may, not
inaptly, be termed a tenant for life, and the owner of the house, waiting
to enjoy it until the termination of the limited interest, may be said, not
inaccurately, to possess a vested remainder. But though the same terms may
be used in English and Muslim law, to describe much the same things, the
two systems of law are based on quite different conceptions of ownerships.
English law recognises ownership of land limited in duration; Muslim law
admits only ownership unlimited in duration, but recognises interests of
limited duration in the use of property.

20 There is a full discussion of the law on this subject in the judgment,
of Sir Wazir Hasan in the case of Amjad Khan v. Ashraf Khan.4 That case
challenged the doctrine accepted by Hanafi lawyers that a gift to “A” for
life conferred an absolute interest on “A”; a doctrine based on a saying of
the Prophet (Hedaya, Bk. III, p. 309) :

“An amree or life grant is lawful to the grantee during his life and
descends to his heirs. The meaning of amree is a gift of a house (for
example) during the life of the donee, on condition of its being returned
upon his death. An amree is nothing but a gift and a condition and the
condition is invalid; but a gift is not rendered null by involving an
invalid condition.”

Sir Wazir Hasan in his judgment examined the appropriate tests and all the
relevant decisions of the Privy Council. He pointed out the distinction in
Muslim law between the corpus and the usufruct, between the thing itself
and the use of the thing. On the construction of the deed which was in
question in the case before him, he came to the conclusion that the donor
intended to confer upon his wife not the corpus, but a life interest only,
that such life interest could take effect as a gift of the use of the
property and not as part of the property itself, and that there was nothing
in Muslim law which compelled him to hold that the intended gift of a life
estate conferred an absolute interest on the donee. This case was taken in
appeal to the Privy Council and is reported in 56 IA 213.5 The Board agreed
with Sir Wazir Hasan on the construction of the deed in question that only
a life interest was intended, and held that if the wife took only a life
interest it came to an end on her death and the appellant who was her heir
took nothing, and if the life interest was bad the wife took no interest at
all and the appellant was in no better case. There is also a discussion of
the basis upon which a life interest under Hanab law can be supported in
the 3rd edition of Tyabji’s Muhammadan Law at pp. 487 et seq: That book as
the work of an author still living, cannot be cited as an authority, but
their Lordships have derived assistance from the discussion.

21 Limited interests have long been recognised under Shia law. The object
of “Habs” is “the empowering of a person to receive the profit or usufruct
of a thing with a reservation of the owner’s right of property in it . . .I
have bestowed on thee this mansion .,. for thy life or my life or for a
fixed period” is binding by seizm on the part of the donee. (Bail: II 226).
See also 32 Bom 1726 at p. 179. Their Lordships think that there is no
difference between the several Schools of Muslim law in their fundamental
conception of property and ownership. A limited interest takes effect out
of the usufruct under any of the schools. Their Lordships feel no doubt
that in dealing with a gift under Muslim law, the first duty of the Court
is to construe the gift. If it is a gift of the corpus, then any condition
which derogates from absolute dominion over the subject of the gift will be
rejected as repugnant; but if upon construction the gift is held to be one
of a limited interest the gift can take effect out of the usufruct, leaving
the ownership of the corpus unaffected except to the extent to which its
enjoyment is postponed for the duration of the limited interest.”

(emphasis is ours)

14. The above extracts from the observations recorded by the Privy
Council, leave no room for any doubt, that the parameters for gifts (under
Mohammedan Law) are clear and well defined. Gifts pertaining to the corpus
of the property are absolute. Where a gift of corpus seeks to impose a
limit, in point of time (as a life interest), the condition is void.
Likewise, all other conditions, in a gift of the corpus are impermissible.
In other words, the gift of the corpus has to be unconditional. Conditions
are however permissible, if the gift is merely of a usufruct. Therefore,
the gift of a usufruct can validly impose a limit, in point of time (as an
interest, restricted to the life of the donee).
15. Having given our thoughtful consideration to the treatises on
Muhammedan Law brought to our notice, as also, the judgment rendered by the
Privy Council in Nawazish Ali Khan’s case (supra), we are of the considered
view, that in a gift which contemplates the transfer of the corpus, there
is no question of such transfer being conditional. The transfer is
absolute. Conditions imposed in a gift of the corpus, are void. For the
determination of the present controversy, the only issue to be considered
by us is, whether the gift made by Sheikh Hussein in favour of Banu Bibi
dated 26.04.1952 contemplates the transfer of the corpus. If the answer to
the above is in the affirmative, then the will dated 26.04.1952 would be
considered as valid, but the conditions incorporated therein, would be
regarded as void.

16. The transfer of the corpus refers to a change in ownership, while the
transfer of usufruct refers to a change in the right of its use/enjoyment
etc. In order to determine whether the gift deed dated 26.04.1952
envisaged a transfer of the corpus, we will have to examine the contents of
the gift deed itself. Accordingly, the gift deed dated 26.04.1952 is being
reproduced hereunder:

“This deed of conveyance of immovable property, i.e. tiled
house with open place worth of Rs.3000.00

XXXXXXX

The tiled house together with open place shown in the schedule
below which was purchased by me out of my earnings on 16.7.1944 from
Smt.Manikyamma, W/o Sri Arundalapalli Tiruvallur Veera Raghavulu and got
the same registered as document No.2462/44 and taken possession of the same
and ever since has been under my absolute right, possession and enjoyment
about there are no disputes or any joint sureties etc. I am conveying in
your favour as you are my wife and out of love to you and delivered
possession of the same to you forthwith, From now onwards you shall enjoy
This immovable property freely without a right to gift, Sale etc. and since
you have no issue so far, you shall enjoy the property during your life
time. Neither myself nor my successors shall raise any objection in
respect of this conveyed property either against you or against your
successors. We shall have no right to cancel this conveyance with silly
reasons. During your life time you shall not alienate This property in
favour of any body and after your life time this property shall devolve
upon your off spring and if you have no children the same shall return back
to me or to my near successors with absolute rights of enjoyment and
dispossession by way of gift, Sale etc. I am herewith filing transfer
memos along with this deed for registration to get your name mutated in
revenue records. Therefore from now onwards you shall pay the Municipal
Taxes and shall enjoy the same freely and happily. I have handed over the
link sale deed and the voucher to you. It is settled that the said voucher
shall be kept with me or with my successors after your life time.”

Having given our thoughtful consideration to the text of the gift deed
dated 26.04.1952, we are of the view that the same contemplates the
transfer of the corpus and not the usufruct. Our reasons for the above
conclusion, are as under:
Firstly, the donor records, having purchased the gifted property from his
own earning on 16.07.1944, through a registered purchase deed, whereby he
was vested with the absolute right of possession and enjoyment of the
property. It is then asserted, that there is no dispute about the title of
the donor, over the gifted property. All the above rights in the donor,
are sought to be transferred by way of gift to Banu Bibi by asserting, “I
am conveying in your favour as you are my wife and out of love to you and
delivered possession of the same to you forthwith, From now onwards you
shall enjoy This immovable property freely…..” The words extracted
hereinabove clearly establish the transfer of the corpus, which was in the
absolute ownership of the donor, to the donee.
Secondly, the use of the words “We shall have no right to cancel this
conveyance with silly reasons” also reveals, the intention of the donor to
transfer the corpus of the property, to the donee.
Thirdly, the use of the words “Neither myself nor my successors shall raise
any objection in respect of this conveyed property either against you or
against your successors”, recognises the rights of the donee as well as her
successors. These words extinguish, not only the donor’s rights in the
property, but also that of his successors. There is recognition of the
rights of the donee and her successors to the extent, that in the event of
transfer of the gifted property to the successors of the donee, the same
would not be assailable by the donor or his successors. This also depicts,
the intention of the donor to transfer the corpus of the gifted
property.
Fourthly, the gift deed records that “…..after your life time this property
shall devolve upon your off spring…..”. The use of the words “your off
spring”, expresses an intention which is separate and distinct from “our
off spring”. In other words, the gift deed contemplates the transfer of
the gifted property by the donee, to her children, even if, such children
were not the children of the donor. This too shows that the intention of
the donor, contemplated the transfer of the corpus.
Fifthly, the gift deed records “I am herewith filing transfer memos, along
with this deed for registration, to get your name mutated in revenue
records. Therefore from now onwards you shall pay the Municipal Taxes and
shall enjoy the same freely and happily.” This expression in the gift
deed, brings out the intention of the donor, that the transfer of the
gifted property should not remain a matter of understanding within the
family, but should be an open declaration to the public. The assertion in
the gift deed, that Municipal Taxes will be borne by the donee, shows that
the donee was to henceforth bear all liabilities of the gifted property, as
its owner.
Lastly, the handing over of the earlier title deeds of the gifted property
to the donee, by recording in the gift deed that “I have handed over the
link sale deed and the voucher to you” also indicates, that the donor
clearly expressed in the gift deed, that he had not retained any documents
of title pertaining to the gifted property with himself, but had handed
over the same to the donee. This also shows the intention of the donor to
relinquish all his existing rights, in the gifted property. This also
shows the intent of the donor, to transfer the corpus of the property to
the donee.

For the reasons recorded hereinabove, there can be no doubt whatsoever,
that the intention of the donor in the gift deed dated 26.04.1952, was to
transfer the corpus of the immovable property to the donee, and not merely
a usufruct therein.

17. Having concluded that the donor Sheikh Hussein through the gift deed
dated 26.04.1952, had transferred the corpus of the immovable property to
his wife Banu Bibi, it is natural to conclude that the gift deed executed
in favour of Banu Bibi, was valid. Likewise, while applying the principles
of Muhammedan Law expressed in recognized texts, and the decision of the
Privy Council in Nawazish Ali Khan’s case (supra) it is inevitable to hold,
that all conditions depicted in the gift deed dated 26.04.1952, which
curtail use or disposal of the property gifted are to be treated as void.
In the above view of the matter, the conditions depicted in the gift deed,
that the donee would not have any right to gift or sell the gifted
property, or that the donee would be precluded from alienating the gifted
immovable property during her life time, are void. Similarly, the
depiction in the gift deed, that the gifted immovable property after the
demise of the donee, would devolve upon her off spring and in the event of
her not bearing any children, the same would return back to the donor or to
his successors, would likewise be void.

18. Having held that the gift deed dated 26.04.1952 irrevocably vested
all rights in the immovable property in Banu Bibi, it is natural for us to
conclude, that the sale of the gifted immovable property by Banu Bibi to
V.Sreeramachandra Avadhani on 02.05.1978, was legal and valid.
Consequently, the claim of the respondents to the gifted property, on the
demise of Banu Bibi on 17.02.1989, is not sustainable in law.

19. For the reasons recorded hereinabove, the instant appeal is allowed.
The order passed by the trial court dated 19.08.1998 is affirmed. The
orders passed by the First Appellate Court dated 05.01.2004, and by the
High Court dated 02.08.2004, are set aside.

20. There shall be no order as to costs.

………………………J.
(JAGDISH SINGH KHEHAR)

………………………J.
(ROHINTON FALI
NARIMAN)
NEW DELHI;
AUGUST 21, 2014.

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