IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 655 of 1996(C)
1. KADEEJAMMAL
... Petitioner
Vs
1. P.N.LAILA BEEVI
... Respondent
For Petitioner :SRI.PEEYUS A KOTTAM
For Respondent :SRI.T.P.MATHAI
The Hon'ble MR. Justice P.BHAVADASAN
Dated :07/07/2011
O R D E R
P. BHAVADASAN, J.
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S.A. No. 655 of 1996
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Dated this the 7th day of July, 2011.
JUDGMENT
Muhammed Hussain Rawther and Kadeeja
Ummal had seven children, namely, Saidu Muhammed
Basheer, Ameer Rawther, Aishamma @ Pathumma,
Kadir Beevi @ Hajira Beevi, Subaida Beevi, Laila and
Seenath. The couple executed Ext.A1 gift deed in favour
of four of their children excluding Subaida, Laila Beevi
and Seenath. Consequent on the death of Muhammed
Hussain Rawther, Laila Beevi and Seenath filed a suit for
partition of the assets left behind by Muhammed Hussain
Rawther. He died on 26.3.1988.
2. The suit was resisted by the defendants
pointing out that since the parents of the plaintiffs had
executed Ext. A1 gift deed, at the time of death of
Muhammed Hussain Rawther he retained no properties
to which the plaintiffs could succeed as heirs.
S.A.655/1996. 2
3. The main question that was posed before the
trial court for consideration was whether Ext.A1 gift deed
was valid or not. According to the plaintiffs, since the
ownership and domain over the property had not passed on
to the donees pursuant to Ext.A1 gift deed, the gift was
invalid. If that be so, according to them, so far as the
properties of Muhammed Hussain Rawther were concerned,
he died intestate. The defendants responded by pointing
out that the gift had taken effect and delivery of the
properties made mention of in the gift deed to each of the
respective donees has been effected. The trial court found
that Ext.A1 was a valid document and gifts had taken effect
and therefore no estate was left behind by Muhammed
Hussain Rawther to be inherited by the plaintiffs, their
siblings and their mother.
4. The plaintiffs carried the matter in appeal as
A.S.61 of 1992 before the Sub Court, Muvattupuzha. The
lower appellate court after referring to the various provisions
of the Muslim Law found that the gift was invalid and
S.A.655/1996. 3
accordingly passed a preliminary decree, which reads as
follows:
"In the result, appeal is allowed setting aside
the judgment and decree of trial court that (i) a
preliminary decree is passed for partition of the
plaint A schedule properties allowing the plaintiffs
to 6/72 each share of the plaint A schedule
properties
(ii) Defendants 3 and 6 are restrained from
committing waste in the plaint A and B schedule
properties.
(iii) The share of the income entitled by the
plaintiffs is left open to be considered in the final
decree proceedings. Plaintiffs are free to apply for
passing final decree within a period of 3 months
from today. Plaintiffs are allowing to get costs of
the proceedings from the estate."
5. Defendants 1, 3 and 6 in O.S. 36 of 1990
assailed the lower appellate court judgment and decree on
the ground that the lower appellate court was not justified in
holding that the gift was invalid.
S.A.655/1996. 4
6. Notice is seen issued on the following questions
of law:
"A) Whether Ext.A1 gift deed is a valid one.
B) Whether the stipulation in the gift deed that
donor reserving the right to recurring income
during his life time will made the gift invalid.
C) Whether a partition suit is maintainable with
regard to property which is not in ownership and
possession of the deceased at the time of his
death."
7. Learned counsel appearing for the appellants
pointed out that the lower appellate court had erred in law
and on facts in coming to the conclusion that the gift
evidenced by Ext.A1 is invalid. Evidence was clear to the
effect that in pursuance to Ext.A1 gift deed, the respective
donees had taken possession of the properties and were
enjoying it as if it belonged to them. Several assignments
have been effected after Ext.A1 and infact donors had
conceded that the gift has taken effect by joining in some of
the assignment deeds. Learned counsel pointed out that it
S.A.655/1996. 5
is true that the donors had reserved life estate over the
properties gifted as per Ext.A1, but since the corpus was
transferred, reservation of life interest over the suit property
and the right to take income therefrom does not derogate
from the gift or does not cut down the gift. Even assuming
that there are some provisions which derogate from the gift,
according to learned counsel, going by Section 164 of the
Mohammedan Law, the condition is invalid and gift takes
effect. According to learned counsel, the lower appellate
court was not justified in coming to the conclusion that the
corpus was retained by the donors and there was no delivery
of the property. The grounds relied on by the lower
appellate court to hold so, according to learned counsel, are
totally erroneous. In support of his contention, learned
counsel placed reliance on the decision reported in
Nawazish Ali Khan v. Ali Raza Khan (AIR 1948 Privy
Council 134), Kadija Beevi v. Maria Ummal (AIR 1958
Kerala 264), Ahemmed Kannu Rawther v. Mohammad
Kani (1965 K.L.T. 505), Madathil Thattantavita Khalid v.
S.A.655/1996. 6
Palott Moothammantakath Sainabi (ILR 1981(2) Kerala
721), M.T.Khalid v. P.M. Sainabi (AIR 1981 Kerala 230),
P.Kunheema Umma v. P. Ayissa Umma (AIR 1981 Kerala
176), Ibrahim Kunju v. Pakkeer Muhammed Kunju
(1984 K.L.J. 890), Pathu Muthummal v. Asuma Beevi
(1986 K.L.T. 1177), Kunhamina v. Katheessa (1989(2)
K.L.T. SN 61), (2006(2) K.L.T. 835), Kochu Ahmmed Pillai
v. Pathummal (2003(1) K.L.T. 826), and Kadeesabi v.
Mohammed Koya (2011(2) KHC 649). Accordingly, it is
contended that the findings of the lower appellate court are
unsustainable and have to be set aside.
8. Per contra, learned counsel appearing for the
contesting respondents pointed out that the lower appellate
court has correctly analysed the provisions in the gift deed
and has come to the conclusion that there was no transfer of
the corpus in pursuance to Ext.A1. On the terms of Ext.A1 it
was found, according to learned counsel that the donors had
retained control and possession over the corpus and the
property were to be taken by the respective donees only
S.A.655/1996. 7
after the lifetime of the donors. Learned counsel drew the
attention of this court to the recital in Ext.A1 and pointed out
that it is not as if the conditions are subsequent. It is clear
from a reading of the document that the gift is subject to
certain conditions. It can be clearly seen, according to
learned counsel, that the donors retained dominion and
ownership over the corpus and if that be so, the lower
appellate court was perfectly justified in holding that the gift
was invalid. Learned counsel went on to point out that the
subsequent assignments by the respective donees, even
assuming that the donors had joined the said assignments,
will not improve the situation. The validity of the gift,
according to learned counsel, will have to be determined by
referring to the recitals to the document and not by
subsequent conduct. Learned counsel went on to point out
that subsequent conduct may be a relevant fact when the
document is ambiguous or when it is difficult to gather the
true intention of the donor from the document. In the case
on hand, no such ambiguity exists and the terms of the
S.A.655/1996. 8
document are very clear and if that be so, there are no
grounds to interfere with the judgment and decree of the
lower appellate court. In support of his contention, learned
counsel relied on the decisions reported in Beepathumma
v. M.N.M. Rowther (AIR 1977 Kerala 54), Mahboob
Sahab v. Syed Ismail ((1995) 3 SCC 693), Laila Beevi v.
N.Sumina (2009(3) KHC 661) and Abdul Rahim v. Sk.
Abdul Zabar ((2009) 6 SCC 160).
9. The fate of this appeal should therefore depend
upon the construction of the terms of Ext.A1 document. If on
a construction of the terms of the deed, it is found that the
gift has taken effect, necessarily the judgment and decree of
the trial court will have to be restored. If on the other hand
it is found that the donors have retained ownership and
dominion over the property and the donees have not
obtained possession pursuant to Ext.A1, then of course no
interference is called for with the judgment and decree of
the lower appellate court.
S.A.655/1996. 9
10. It is trite that each case will have to be
considered with reference to the terms of the deed that
came up for consideration and precedents are of no help in
this regard. Precedents only laid down certain principles to
be followed and cannot be readily borrowed to construe the
terms of a document. The intention and the consequences
of the recitals will have to be ascertained by reading the
document as a whole.
11. Ext.A1 is the gift deed in question. The
relevant recitals read as follows:
"
, ,
."
(since the marriage of four of you have already been
conducted and Subaida, Laila and Seenath have been given
all rights which they had at the time of their marriage and it
is decided that they need not be given anything further.)
S.A.655/1996. 10
".......
,
,
."
(A schedule is set apart to executee No.1, B schedule and
the building therein with the foundation for a new building to
the second excutee, C schedule to the third executee, D
schedule to the fourth executee subject to the conditions
herein. It further recites that the donees may effect
mutation and pay property tax and make improvements
after the death of each of the donors and enjoy as if it
belonged to each of the donees.)
"...
S.A.655/1996. 11
-
-
."
(The donees have the right to enjoy and take the income
from A to D schedule properties now available and that may
be available in future and also the right of residence in
buildings contained in A and B schedules now available and
that may be put up in future consequent on the death of
one of the donors the surviving member will have the same
rights. In addition the donors have the right to encumber
the properties for any amount over any of the properties in
S.A.655/1996. 12
A to D schedules and also to create documents in respect of
any of the properties. This right may be exercised jointly or
any one of the surviving members and the rights so
reserved is absolute in nature. The recital also mentions
that if any charge is created over the property, that has to
be discharged by the respective donees who have been
allotted the properties under the gift deed.)
12. It is the above recitals that arise for
consideration in this case. As already noticed, the
contention of the learned counsel appearing for the
appellants are two fold. They are (i) there is a transfer of
ownership and dominion over the properties immediately
and the donors retained only the right of life estate and the
right to take usufructuous from the property, (ii) even
assuming that there is a condition limiting the estate, that
is void under Section 164 of the Muhammedan Law.
13. Learned counsel for the respondents on the
other hand pointed out that a reading of the recitals
extracted above will clearly show that there was no
S.A.655/1996. 13
divestiture of the rights over the property in favour of the
donees and if that be so, the gift is invalid.
14. Before going further into the matter, it will be
useful to refer to the relevant provisions of the
Muhammedan Law and the decisions relied on by counsel on
either side. This court is fortunate to note that the lower
appellate court has infact referred to Sections 138, 148, 149
and 150 of the Muhammedan Law by Mulla. Section 138
defines what a gift is. Section 148 mentions about the
ingredients necessary for a gift and Section 149 mentions
the three essential conditions for a gift and Section 150
speaks about the necessity for delivery of property to
complete the gift. In addition to the above provisions, one
may also note Section 164, which reads as follows:
"164. 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.A.655/1996. 14
15. After referring to the various decisions, one
shall come back to ascertain the true purport and intent as
could be gathered from the deed.
16. In the decision reported in Nawazish Ali
Khan's case (supra) it was held as follows:
"What Muslim law does recognize and insist
upon, is the distinction between the corpus of the
property itself and the usufruct in the property.
Over the corpus of property the law recognizes
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 services 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,
S.A.655/1996. 15
it is consequently so after death; and aos, 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 leatee,
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 during the term prescribed, and afterwards
restore it to the heirs."
This distinction runs all through the Muslim
law of gifts-gifts of the corpus (hiba) , gifts of the
usufruct and usufructuary bequests. No doubt
where the use of a house is given to a man for his
life he may, not inaptly, be terms 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 ownership.
S.A.655/1996. 16
English law recognizes 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."
"..... 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
the 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.
17. It needs to be noticed at once that the
document construed in the above case is a Will and the
recitals in the document have been extracted in paragraph
11 of the judgment. The principle laid down in the said
decision appears to be that it is possible to retain a life
S.A.655/1996. 17
estate after complete divestiture of the ownership and
dominion in favour of the donees. That does not militate
against the gift under the Mohammedan Law. It is also
discernible from the above decision that any condition
subsequent in derogation of the absolute right given to the
donees is invalid and void.
18. In the decision reported in Kadija Beevi v.
Maria Ummal (AIR 1958 Kerala 264) it was held as follows:
"According to the principles of Muhammadan
law a gift of immovable properties of which the
donor is in actual possession is not complete
unless the donee is given possession. The mere
fact that the donor reserves the right to take the
usufruct during his life time does not mean that
possession is not given to the donees. Such a
reservation is quite consistent with delivery of
possession of the properties to the donees."
19. In the decision reported in Ahemmed Kannu
Rawther v. Mohammed Kani (1965 K.L.T. 505) it was held
as follows:
S.A.655/1996. 18
"But the case presents another feature. The
parties are Mohammadans. According to the law
governing them, life interests and vested
remainders are not recognised. Learned counsel
reling on Nawazish Ali Khan v. Ali Raza Khan
contended for the position, that the grant in this
case under Ext.XXXI was not of the corpus of the
properties, but only of their usufruct. The Privy
Counsel held in the case cited, as follows:
"Their Lordships feel no doubt that in no
doubt that in dealing with a gift under Muslim law,
the first duty of the court is to construe the gift. It
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."
It follows that if the grant falls under the
former part of the above, the 3rd defendant takes
absolutely notwithstanding the restriction or
limitation, but if it falls under the latter part,
S.A.655/1996. 19
namely, a grant of the usufruct of the property as
distinguished from the corpus, the grant limited
though it be for the third defendant's lifetime, is
valid.
.....The stipulation that the grantee may enjoy the
property cannot lend itself to the interpretation
that she was merely to collect and enjoy the
usufruct of the property. She ws even permitted
to grant releases of mortgages concerning the
properties, though with the attestation of her
husband."
The recitals in the document construed are available in
paragraph 2 of the judgment. On the terms of the
document, it was held by this court that the third defendant
in the said suit had nothing more than a life interest
terminable on her death.
20. In the decision reported in Madathil
Thattantavita Khadid's case (supra) a distinction was
drawn between transfer of ownership and dominion over the
property and the right to take usufructuous. The relevant
S.A.655/1996. 20
recitals in the document construed in that case is available
in paragraph 6 of the judgment. After construing the
document it was held as follows:
"Mohammedan Law does not recognise a gift
as valid unless three essential elements are found
to co-exist. (1) manifestation of the donor's wish
to give; (2) acceptance of the gift by the donee
either expressly or impliedly; and (3) taking of
possession of the subject-matter of the gift by the
donee either actually or constructively. Delivery
of possession need not necessarily be physical or
actual, but it should be delivery of such
possession as the subject-matter of the gift is
susceptible of. In Mohammedan Law there is a
clear distinction between a gift of the corpus and
a gift of the usufruts. Over the fomer the Law
recognizes only absolute dominion and admits of
no condition which seeks to limit that dominion;
whereas in the case of the latter a limited interest
can be created in which even the dominion over
the corpus takes effect subject to that limited
interest. Mohammedan law knows of no
ownership which is limited in duration; but it
S.A.655/1996. 21
recognizes interests of limited duration in the use
of the property. The gift deeds were intended to
be, and did operate, as an immediate and
irrevocable disposition of the properties in
question in favour of the donees. The reservation
of the usufructs in favour of the donor during his
life with authority to collect rents and profits as
the agent of the donees did not make the gift void
under Mohammedan Law."
21. In the decision reported in M.T. Khalid's
case (supra) the distinction between a gift of the surplus
and gift of the usufructuous was drawn. It was held as
follows:
"In Mohammedan law there is a clear
distinction between a gift of the surplus and a gift
of the usufructs. Over the former the law
recognizes only absolute dominion and admits of
no condition which seeks to limit that dominion;
whereas in the case of the latter a limited interest
can be created in which event the dominion over
the corpus takes effect subject to that limited
interest. Mohammedan law known of no ownership
S.A.655/1996. 22
which is limited in duration but it recognizes
interests of limited duration in the use of the
property. In Nawazish Ali Khan v. Ali Raza Khan
the Privy Council observed:
"In General, Muslim law draws no distinction
between real and personal property....... What
Muslim law does recognize and insist upon, is the
distinction between the corpus of the property
itself and the usufruct in the property. Over the
corpus of property the law recognizes 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."
We are of the view that Exts. B2 and B3 were
intended to be, and did operate, as an immediate
and irrevocable disposition of the properties in
question in favour of the donees. The reservation
of the usufructs in favour of the donor during his
life with authority to collect rents and profits as
the agent of the donees did not make the gifts
S.A.655/1996. 23
void under Mohammedan Law."
22. In the decision reported in P. Kunheema
Umma's case (supra) the requirements of a gift of
immovable property under Mohammedan Law was
highlighted. It was held as follows:
"If as a matter of fact, even prior to the
execution of the document, the 1st defendant was
in possession of the property as allowed by the
donor, it was only the nominal right that the donor
was retaining with him that was required to be
delivered to the donee. In other words, if the khas
possession was already with the donee, what was
required to be given by the donor was only the
remaining rights. That could be done by mere
declaration and by the execution of the document,
as no other overt act is necessary. "
23. The decision reported in Ibrahim Kunju's
case (supra) considered three aspects. They are (i) a
recital in the deed of gift that the property is delivered is
S.A.655/1996. 24
prima facie proof of delivery of possession, (ii) reservation
of life interest is not objectionable and (iii) condition that the
donor can encumber the property is bad in law. In
paragraph 12 of the above decision, the recital in the
document that came up for consideration is extracted. It
was held as follows:
"The Mohammedan Law relating to gifts has
been clearly put by Justice Din Mohammed in Nazir
Din v. Mohammed Shah in the following words:
"The courts in this country have given effect
rather to the spirit of the rule than to its letter and
have upheld gifts in all cases in which the intention
to give on the part of the donor had been
expressed in most unequivocal terms and had
further been attended by all honest efforts on his
part to complete the gift by divesting himself of
the control over the property in such a matter as
would clearly imply his divestiture in the eye of
the law of the land."
"The raison D"etre of of this rule was the
avoidance of gifts that were vague, indefinite or
incomplete and the only test that should be
S.A.655/1996. 25
applied in such cases is whether the gift in
question is open to any of these objections; or in
other words, whether the donor has still
reserved to himself a loop-hole of escape or not."
As has been pointed out in the Travancore-
Cochin case Maitheen Beevi Umma v. Varkey and
in the Kerala Case Muhammad Pathummal Kadija
Beevi v. Maria Ummal Mohammad Pathummal that
while it is true that according to principles of
Mohammedan Law a gift of immovable properties
of which the donor is in actual possession is not
complete unless the donee is given possession,
the mere fact that donor reserves the right to
take usufruct during his life time does not mean
that possession is not given to the donees. Such a
reservation is quite consistent with delivery of
possession of the properties to the donees. A
condition in a deed of gift that the whole of the
usufruct would be taken by the donor during his
life time would not make the gift invalid if
possession of the subject matter of the gift was
given to the donees."
S.A.655/1996. 26
24. In the decision reported in Pathu
Muthummal's case (supra) in paragraph 3 the relevant
recitals in the document are seen extracted. It was held as
follows:
"The three essentials to the validity of a gift
in Mohammedan Law are (1) a declaration of gift
by the donor, (2) an acceptance of the gift,
express or implied, by or on behalf of the donee,
and (3) delivery of possession of the subject of the
gift by the donor o the donee as the subject of gift
is susceptible of. No physical departure or formal
entry is necessary in the case of a gift of
immovable property in which the donor and the
donee are both residing at the time of the gift. In
such a case the gift may be completed by some
overt act by the donor indicating a clear intention
on his part to transfer possession and to divest
himself of all control over the subject of the gift.
this rule applies to gifts of immovable property by
a wife to the husband and by a husband to the
wife, whether the property is used by them for
their joint residence, or is let out to tenants. The
fact that the husband continues to live in the
house or to receive the rents after the date of the
S.A.655/1996. 27
gift will not invalidate the gift, the presumption in
such a case being that the rents are collected by
the husband on behalf of the wife and not on his
own account.
......... The document says that the entire
rights are given in presente. The donee was
authorised immediately to effect mutation in her
name and get patta. She was also authorised to
pay tax for all the properties immediately. That
she complied with these provisions is not in
dispute. She was authorised to effect
improvements also. There is a provision which
says that she has to take possession of item No.1
after the death of the donor. Provision for
effecting improvements is commonly made even
though there is scope for a contention that
regarding item No,1 that provision is also
intended to take effect only after the death of the
donor. But in the immediate succeeding sentence
he made his intention clear. He clearly stated that
what he reserved with him was only the
enjoyment of the usufructs of item No.1 and the
freedom to reside in the building in item No.1 and
nothing else. That means he did not even retain
possession or right to effect improvements in item
S.A.655/1996. 28
No.1 and subject to his right of residence in the
building and the right to enjoy the usufructs of
that property the entire rights including
possession were handed over to the donee. In
such circumstances the provision that the donee
can possess and enjoy the property after his death
could only mean that till his death the wife is not
given the right to take usufructs of the property.
No other restriction could be inferred from the
circumstances. he has further clarified this
position by saying that subject to the right to take
usufructs and reside in the building as stated
above he has relinquished all other rights
immediately in favour of the donee. That is
further indication that except the two rights he
has relinquished all other rights including
possession also. The donee was already residing
along with donor and that residence is not
disturbed. In such a situation the declaration in
the gift without any physical departure or formal
entry was sufficient to put the donee who was
already in the premises into possession. Along
with these facts the explicit intention of the donor
to gift the properties and the reasons therefor
mentioned in the gift deed are also relevant."
S.A.655/1996. 29
25. In the decision in Kunhamina's case (supra)
it was held as follows:
"In a case where a gift deed has been
executed by a Muslim and if it satisfies the
essential ingredients of gift under the
Mohammedan Law mere recitals in the deed that
the donor is at liberty to enjoy the income during
his life time cannot render the gift bad. In a case
where 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. Mohammedan
Law makes a distinction between the corpus of
the gift and the usufruct. Any reservation of right
in manafi, so long as the ayn is transferred, does
not render the gift bad. Thus in a case where
there is declaration of the gift by the donor,
acceptance of the same, express or implied, by or
on behalf of the donee and delivery of possession
to the donee a mere recital that usufructs will be
enjoyed by the donor will not render the gift bad
on the ground that possession of the properties
have not been given to the donees. In a case
S.A.655/1996. 30
where a donor did not divest himself with the
corpus of the gift is bad. It will not be so if the
donor reserved right in himself to take the income
from the properties during his life time."
26. In the decision in Kochu Ahmmed Pillai's
case (supra) the recitals in the document that came up for
consideration are seen mentioned in paragraph 3 of the
judgment. It was held as follows:
"The unequivocal statement in the gift deed
gave absolute right to the first defendant and the
further condition that after the death of 1st
defendant, the plaintiff will get the property
cannot be enforced under the Mohammedan Law.
There is no life interest under Mohammedan Law,
for the corpus, though it is possible to provide for
a provision reserving the right to take usufructs
while giving the absolute right in the corpus to the
donee."
27. In the decision in Kadeesabi v. Mohammed
Koya (2011(2) KHC 649) it was held as follows:
S.A.655/1996. 31
"Now examining the decisive question
whether Ext. A2 gift deed had come into effect or
not, on which both the Courts below have
concluded that it has not, accepting the
contentions of the defendants, the significance of
Ext.A4 consent deed obtained by the donor from
the donees under Ext.A2 had been ignored as if
that deed was of no consequence. To consider
whether there was delivery of possession in favour
of the donees after execution of Ext.A2 gift deed,
the execution of Ext.A4 consent deed and what
are all stated thereunder is of great value, and, in
fact, the controversy arising for adjudication in the
suit for its resolution irrespective of other
materials produced and circumstances presented
has to be appreciated in the backdrop of Ext.A4
consent deed. The donor Cheriyakoya Haji, after
execution of Ext.A2 gift deed, nearly four months
later, got a consent deed (Ext.A4) from the donees
to enable him to have enjoyment of the property
till his life. Going through Ext.A4 gift deed, it is
seen, the donees gave their consent to the donor
to enjoy the properties covered by Ext.A3 till his
life time. The defendants have no case nor even
any challenge over the execution and also
S.A.655/1996. 32
acceptance of Ext.A4 by Cheiyakoya Haji, the
executant of Ext.A2, and thus, his obtaining of
consent from the donees for enjoyment of the
properties under Ext.A1 gift deed. If Ext.A2 deed
had not taken effect with delivery of possession to
the donees, there was absolutely no need for the
donor to obtain any sent as under Ext.A4 deed
from the donees for his enjoyment of the
property. What has been granted by the donees
under Ext.A4, it could be seen, is only a consent or
permission to the donor to enjoy the property till
his life time and not even of handing over the
possession of the property, which from the above
circumstances itself amply demonstrate that on
execution of Ext.A2 gift deed, the possession of
the property was delivered over to the donees.
Ext.A2 gift deed does not specifically contain a
statement as to delivery of possession, is not
material as such possession could be proved and
established by other circumstances surrounding
the execution of the gift and also what transpired
after the execution of the deed. In Ext.A2 gift
deed, it is specifically stated, after describing the
particulars of the properties covered, that it had
been given away as a gift to the donees and none
S.A.655/1996. 33
other would have any right over that property. No
reservation has been made in favour of the donor
even in respect of the enjoyment over that
property, which was, however, obtained by him
later, after Ext.A2 gift deed, under Ext.A4 consent
deed from the donee, is a telltale circumstance
that by making a declaration that none other
would have any right over the property and
handing over of possession to the donees on
execution of Ext.A2 gift deed."
28. A reading of the above decision shows that
there was an absolute gift in favour of the donees by the
document executed by the donor. Thereafter donor gets a
document executed by the donees entitling the donor to
take usufructuous during his lifetime. Later it seems that
the donor had cancelled the gift deed. The decision was
rendered in that context.
29. One may now refer to the decisions referred
to by the learned counsel for the respondents.
S.A.655/1996. 34
30. In the decision in Beepathumma's case
(supra) the recitals of the document which came up for
consideration are extracted in paragraph 5. It was held as
follows:
"......The phrase used is "kayvasom veche
aadaayangal anufavich varumaanom" which
normally should mean that the executant was
entitled to be in possession of the property and
enjoy the same by taking usufructs. That this is
so is clear form the latter portion of clause (2)
which specifically authorise the executee to be in
possession of the property and enjoy the same --
"Ningal kayvasom vache anulavicha
varumaanom" though that right would enure to
the executee only after the lifetime of the
executant. That if the donor reserves to himself
the right to be in possession of the corpus and
the right to enjoy the same, there cannot be a
valid gift under Muslim law, has been laid down by
Sir John Beaumont on behalf of the Board in
Nawazish Ali Khan v. Ali Raza Khan. It was said:-
"What Muslim law does recognize and insist
upon, is the distinction between the corpus of the
property itself and the usufruct in the property.
S.A.655/1996. 35
Over the corpus of property the law recognizes
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."
The passage above quoted would mean that
Muslim law requires the gift of corpus itself and if
there is anything repugnant to such a gift, such a
repugnant condition would be invalid, but it is
necessary that the gift should be of the corpus.
We have earlier found, construing clause 92) in
each of the four documents that there was no gift
of the corpus, the executant having reserved to
himself all rights in respect of the corpus
including the right to take usufructs. To the same
effect is the decision of the Privy Council in
Mohamed Aslan Khan v. Khalilyl Rehman Khan,
AIR 1947 PC 97. Therein it was held that if
possession of the property was reserved with the
donor the gift is not complete. The afore said
decision was followed by this court in Hajee Kunju
S.A.655/1996. 36
Mamathu v. Asikutty, 1959 Ker LT 624 and
Pichakannu v. Aliyarkunju Lebba, 1963 Ker L.T
226. In the later decision Velu Pillai, J stated that
it was a fundamental rule of Muhammedan Law as
regards gifts that the donor should divest himself
completely of all ownership and dominion over the
subject of the gift and that a gift with a
reservation of possession by the donor during his
lifetime was void as held in Mohamed Aslan Khan
v. Khalilul Rehaman Khan, AIR 1947 PC 97. In
view of the decisions mentioned above we are at
one with the lower court in holding that the gifts
Exts.B1, B4, B6 and B7 are bad under the Muslim
law and that the same could not confer on the
respective executee any right in respect of the
property stated to have been gifted thereunder."
31. In the decision reported in Mahboob
Sahab's case (supra) it was held as follows:
"....It would thus be clear that though gift by
a Mohammedan is not required to be in writing
and consequently need not be registered under
the Registration Act; for a gift to be complete,
S.A.655/1996. 37
there should be a declaration of the gift by the
donor; acceptance of the gift, express or implied,
by or on behalf of the donee, and delivery of
possession of the property, the subject matter of
the gift by the donor to the donee. The donee
should take delivery of the possession of that
property either actually or constructively. On
proof of immovable property in the possession of
the donor, he should completely divest himself
physically of the subject of the gift."
32. In the decision reported in Laila Beevi's
case (supra) it was held as follows:
"....The burden of proof is, therefore, on the
person who sets up a gift to show that the rigid
forms stipulated by the Muslim Law have been
complied with. It is, hence, essential to the
validity of a Muslim gift that the donor should
divest himself or herself completely of all
ownership and dominion over the subject of the
gift before he or she can effect delivery of
possession of the property gifted. Actionable
claims and even incorporeal property can form the
S.A.655/1996. 38
subject matter of the gift. If the gift is in respect
of immovable property, it must effect an
immediate transfer of the corpus of the property.
Where a gift of the corpus is given and the donor
does not reserve any dominion over the corpus
but merely retains his right to take the produce or
income or usufructus from the property, the gift is
valid."
33. In this context it will also be useful to refer to
the decision reported in Hafeeza Bibi v. SK. Farid ((2011)
5 SCC 654) wherein it was held as follows:
"The position is well settled, which has been
stated and restated time and again, that the three
essentials of a gift under Mohammadan Law are:
(1) declaration of the gift by the donor; (2)
acceptance of the gift by the donee; and (3)
delivery of possession. Though, the rules of
Mohammadan Law do not make writing essential
to the validity of a gift; an oral gift fulfilling all the
three essentials makes the gift complete and
irrevocable. However, the donor may record the
transaction of gift in writing."
S.A.655/1996. 39
34. From a reading of the relevant provisions of
the Mohammedan Law and also the decisions referred to
above, under the Muhammedan Law for validity of a gift four
elements appears to be necessary. They are
(i) Declaration of gift by donor.
(ii) Relinquishment by donor over ownership and
domain.
(iii) Acceptance of gift by the donee.
(iv) Delivery of possession of property by the donor.
35. It cannot be doubted that in order to complete
the gift, the donor has to relinquish control and ownership
over the property absolutely in favour of the donee. The
donee should accept the gift. The acceptance signifies the
intention of the donee to take the property. The gift is
complete only on acceptance. It is also evident from the
decisions on the point that the delivery of possession of the
subject matter of gift is essential for a valid gift. It need
not always be actual physical delivery. Such delivery as the
S.A.655/1996. 40
subject matter would make it possible is sufficient.
However, it is very evident from a reading of the decisions
on the point that each case depended upon the facts and
circumstances of that case and the recitals in the deed
which came up for consideration.
36. Keeping the above principles in mind, an
attempt shall now be made to ascertain the true purport of
the recitals in Ext.A1 which had already been extracted.
The question that arises for consideration is whether on the
terms of the recitals extracted in the earlier portion of the
judgment, it could be said that soon after the execution of
the document there is a transfer of the properties dealt with
under the document in favour of the donees. The next
question is whether the donees have accepted the gift and
there has been a delivery of possession.
37. One is left with no doubt regarding the fact
that if an absolute estate is created initially and then a
condition is included derogating from the absolute estate so
created, the subsequent condition is void. It needs to be
S.A.655/1996. 41
noticed that in the cases relied on by the learned counsel
for the appellants, those were all cases an absolute estate
was created and thereafter clause violating the absolute
estate was incorporated in favour of the donor. Of course in
one of the cases, there was a subsequent clause which
enabled the donor to encumber the property to certain limit.
Still it was held that the gift was valid.
38. In the case on hand, the recitals extracted
above indicate the following:
(i) the donors can encumber any property to any
extent.
(ii) can create documents in respect of any of the
properties.
(iii) the right of the donees to take the property
absolutely arises on the death of the donors.
(iv) the deed does not mention that possession has
infact been given.
S.A.655/1996. 42
39. Apart from the above factors, the donors have
reserved the right to reside in the buildings in A and B
schedule properties and to take income that is available and
that will be available in future from all the properties.
40. Much was argued regarding the above
aspects by the learned counsel for the appellants. It was
pointed out that subsequent conduct is a relevant factor
and reference was made to Exts.A2 to A5, which are
assignment deeds executed by the donees along with the
donors in respect of the properties which are the subject
matter of Ext.A1. The contention is that the fact that the
donors have joined in some of those assignments will clearly
reveal that the intention of executing Ext.A1 was to transfer
the possession of the property and the property was taken
delivery of by the respective donees.
41. It is true that subsequently documents have
been executed in respect of the properties covered by
Ext.A1 and it is also true that the donors have joined in
some of them. D.W.1, who is one of donors under Ext.A1
S.A.655/1996. 43
has stated that pursuant to Ext.A1, the donees had taken
possession of the property and they were in enjoyment of
the same. She has also stated in her evidence that the
intention of the donors was to give the properties forthwith
to the respective donees. Reference was also made to the
evidence of P.W.1, who says that the respective donees are
in possession of the properties.
42. P.W.1 in her cross-examination of course
stated that whatever stated in Ext.A1 is correct and that as
per Exts.A2 to A5 the respective properties are in the
possession of the respective persons.
43. Reference has already been made to the
evidence of D.W.1, who as already noticed, is one of the
donors under Ext.A1. She would also say that the property
set apart to Ayishamma and Subaida had been alienated
after the properties were given to them as per Ext.A1. In
some of the documents, she says that, she and her
husband also joined. But her cross examination would
reveal that she had little knowledge about the contents of
S.A.655/1996. 44
Ext.A1. She had absolutely no idea as to who had given
instructions to prepare the written statement in the suit and
she is ignorant about the contents in the plaint as well as in
the written statement.
44. D.W.2 is the sixth defendant. He claims to
have put up a house in the property allotted to him. He also
speaks about Exts.A2 to A5 assignment deeds. According to
him even though it is recited in Ext.A1 that the donors could
encumber and alienate the property, they have no right to
do so. He has also stated that Ext.B2 was executed in his
name by his parents. In cross examination he would admit
that Ext.A1 recital is to the effect that the properties are to
be enjoyed by the donees after the death of the donors. He
would also concede that as per the recital in the document,
the properties are to devolve on the donees subject to
certain conditions. He would not dispute the recitals in
Ext.A1.
45. The core question that arises for
consideration is whether one has to go by the terms in
S.A.655/1996. 45
Ext.A1 or by the subsequent conduct. Primarily the law
seems to be that the document has to be construed and the
intention has to be ascertained. If only the terms of the
document are ambiguous and the intention is not discernible
from the recitals, then one can look into the subsequent
conduct. The trial court took the view that since the donees
are in possession of the property as per Ext.A1 document,
the gift has came into effect. The court was of the view
that the right to take usufructuous does not derogate from
the absolute grant by Ext.A1 document and that is the well
recognised mode of gift.
46. However, the lower appellate court took a
different view and on the terms of the document came to
the conclusion that since the donors during their lifetime
had retained the right to take usufructuous, encumber the
property and also alienate the property, it could not be said
that delivery has been given immediately and possession
has been taken by the donees in pursuance to Ext.A1
document. The lower appellate court also took aid of
S.A.655/1996. 46
Exts.A2 to A5 to come to the conclusion that since donors
had joined the documents, it is clear that they have retained
rights over the properties which are the subject matter of
Ext.A1. According to the lower appellate court if as a matter
of fact the donors had completely relinquished their rights,
it is unnecessary for them to join Exts.A2 to A5.
47. There can be no dispute regarding the fact
that going by the terms of Ext.A1 donors have the right to
take usufructuous, encumber the property to any extent and
also to alienate the property. The recital indicate that
during the lifetime of the donors, donees are not to enjoy
the property. It is not a case where there is an absolute gift
followed by the reservation of taking usufrctuous only from
the property or in other words it is not a case where the
corpus is transferred and the right to take usufructuous is
retained. It is not possible to accept the contentions raised
by the appellants that since there have been subsequent
assignment deeds and the respective donees have dealt
with the properties, it should be presumed that possession
S.A.655/1996. 47
has been given and delivery has been effected.
48. True, the subsequent conduct may be a
relevant factor. But one cannot ignore the terms of Ext.A1.
The nature of right reserved by the donors, the mode of
enjoyment, and also the extent of rights retained for
themselves clearly show that there is no divestiture of
ownership and dominion completely over the property in
favour of the donees. If on a reading of Ext.A1 one
concludes that there is no deliverty of possession and that
the donors have retained control over the properties, then it
is doubtful how far subsequent conduct can help the
defendants. It is significant to notice that there is nothing
to indicate that donees have effected mutation or paid
property tax in respect of the property in pursuance to
Ext.A1. Ext.A1 is dated 8.8.1979 and Exts.A2 to A5 are
from 1985 to 1989. Ext.B1 building tax paid by the sixth
defendant is in the year 1986. At the risk of repetition, one
may notice that the donors reserved the right to enjoy the
property, they reserved the right of residence, they retained
S.A.655/1996. 48
the right to encumber the property to any extent and also to
alienate the same. The essential ingredients to constitute
ownership and possession therefore are retained by the
donors. It is not a case where an absolute grant is made
and thereafter conditions in derogation of the absolute grant
is included in Ext.A1. As already noticed, the deed begins
by saying that it is subject to certain conditions. That
means, the transaction effected as per Ext.A1 document is
subject to the conditions which are to follow. The condition
is not a subsequent one which is to be treated invalid or
void. Of course in one of the decisions relied on by the
learned counsel for the appellants, it was held that the
mere fact that the donors retained the right to encumber
the property to some extent by itself is not a ground to hold
that there is no delivery of possession and acceptance of the
gift. But that was on the basis of the recital in the document
that had come up for consideration in that case. In the case
on hand, it does not appear that the donors have completely
given up all their rights over the property covered by Ext.A1
S.A.655/1996. 49
and infact it would appear that they have retained their
rights and it was intended that the settlement should take
effect in favour of the donees after the death of the donors.
49. The trial court does not appear to have taken
note of the relevant recitals in Ext.A1 and was carried away
by the fact that the right is only to take the usufructuous
which is not objectionable in a deed of gift. However the
lower appellate court has considered the document and its
recitals and has come to the conclusion that the gift is
objectionable.
50. A very feeble contention was raised by the
learned counsel for the appellants that the gift is of the year
1979 and the suit was brought only in 1990. Meanwhile the
transactions have been challenged by the plaintiffs.
Without seeking recovery of possession, the suit was not
maintainable.
51. The contention is only to be rejected.
Plaintiffs have stated that they were unaware of the gift.
The mere fact that certain transactions have been effected
S.A.655/1996. 50
by the donees does not destroy the right of the plaintiffs and
the contention raised in this behalf is only to be rejected.
52. It cannot be said that the lower appellate
court had erred in any manner in coming to the conclusion
that the gift had not taken effect. The findings were
essentially based on the contents of the document and it
could not be said that the interpretation given by the lower
appellate court was quite unwarranted or unjustified by the
recitals in Ext.A1.
The result is that this appeal is without any merits
and it is liable to be dismissed. I do so confirming the
judgment and decree of the lower appellate court. There
will be no order as to costs.
P. BHAVADASAN,
JUDGE
sb.
