The Apex Court observed 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).
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.2364 OF 2005
V. SREERAMACHANDRA AVADHANI (D) BY L.RS.
VERSUS
SHAIK ABDUL RAHIM & ANR.
Jagdish Singh Khehar, J.
Dated;AUGUST 21, 2014.
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
Page 1
2
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
respondents
purchased
preferred
a
suit
by
him
bearing
from
Banu
O.S.No.256
Bibi,
of
the
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
Page 2
3
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,
19.08.1998.
Andhra
Pradesh
dismissed
the
original
suit
on
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 gifted
trial
court
held,
that
Sheikh
Hussein
had
corpus of the immovable property to his wife Banu Bibi.
on
the
aforesaid,
it
was
further
concluded,
that
the
Based
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.
the
Dissatisfied with the order passed by the trial court,
respondents
Additional
preferred
District
Andhra Pradesh.
Judge,
an
appeal
Eluru,
West
before
the
Godavari
Second
District,
The First Appellate Court accepted the appeal
Page 3
4
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
Page 4
5
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
gift,
appreciating
under
the legal implications
Muhammedan Law. While
pertaining
determining
to
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.
Page 5
6
8.
Dissatisfied
Appellate
with
Court,
the
the
judgment
vendee
rendered
by
V.Sreeramachandra
the
First
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,
Page 6
7
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
basis
of
The controversy was again disposed of, on
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
(Civil) No.22023 of 2004.
filing
Special
Leave
to
Appeal
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
Muhammadan Law on the subject of gifts (hiba).
aspects
of
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
Page 7
8
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:-
(i) 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.
(ii) 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.
(iii)
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.
(iv) 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
Page 8
9
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)
Page 9
10
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
Page 10
a
11
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
Page 11
12
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 es-
tate vested after his death in the three suc-
cessive tenants for life; that on the exercise
of the power of appointment it would pass imme-
diately to the appointee; that there was no pe-
riod 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 be-
tween real and personal property, and their
Lordships know of no authoritative work on Mus-
lim 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,
Page 12
13
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 ab-
solute 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 re-
jected 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 inter-
ests.
"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 dur-
ing life, it is consequently so after death;
and also, because men have occasion to make be-
quests of this nature as well as bequests of
actual property. So likewise, if a person be-
queath 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 af-
terwards 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 be-
quests. No doubt where the use of a house is
given to a man for his life he may, not in-
aptly, 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 re-
mainder. But though the same terms may be used
Page 13
14
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 lim-
ited in duration; Muslim law admits only owner-
ship unlimited in duration, but recognises in-
terests of limited duration in the use of prop-
erty.
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 ac-
cepted 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 (He-
daya, 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 in-
valid condition."
Sir Wazir Hasan in his judgment examined the
appropriate tests and all the relevant deci-
sions 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 be-
fore 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 ab-
solute interest on the donee. This case was
taken in appeal to the Privy Council and is re-
ported 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 in-
tended, 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 noth-
Page 14
15
ing, 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 liv-
ing, cannot be cited as an authority, but their
Lordships have derived assistance from the dis-
cussion.
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 be-
stowed 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 funda-
mental conception of property and ownership. A
limited interest takes effect out of the
usufruct under any of the schools. Their Lord-
ships 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 con-
struction the gift is held to be one of a lim-
ited interest the gift can take effect out of
the usufruct, leaving the ownership of the cor-
pus 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 parame-
ters for gifts (under Mohammedan Law) are clear and well de-
fined.
Gifts pertaining to the corpus of the property are
absolute.
Where a gift of corpus seeks to impose a limit, in
Page 15
16
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 trea-
tises 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 contem-
plates 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 owner-
ship, while the transfer of usufruct refers to a change in the
right of its use/enjoyment etc.
In order to determine whether
Page 16
17
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 Tiruval-
lur 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 abso-
lute 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 prop-
erty either against you or against your succes-
sors. 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 succes-
sors with absolute rights of enjoyment and dis-
possession 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 en-
joy 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
Page 17
18
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 prop-
erty 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 as-
serted, 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 can-
cel this conveyance with silly reasons” also reveals, the in-
tention of the donor to transfer the corpus of the property,
to the donee.
Thirdly, the use of the words “Neither myself nor my succes-
sors shall raise any objection in respect of this conveyed
Page 18
19
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 recogni-
tion of the rights of the donee and her successors to the ex-
tent,
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 inten-
tion 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 cor-
pus.
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
Page 19
20
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 trans-
fer 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
Page 20
21
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 im-
movable 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 irrevoca-
bly 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 Appel-
Page 21
22
late
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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