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Wednesday, September 3, 2014

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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