RIGHT OF PARTITION OF A HINDU GRANDSON IN ANCESTRAL PROPERTY-LAW ENUNCIATED

 

Right of a HINDU grandsons in ancestral property-law ENUNCIATED

 

The Supreme Court in a most recent judgment reported as 2026 INSC 1208 (Civil Appeal No.7020 of 2012 and captioned as J. Rajesh ( Minor) Through His Mother & natural Guardian Vs M. Kumaran (Dead) Through LRs & Ors has dealt with a very interesting , yet a very debatable topic, thereby putting at rest any ambiguity if existed in this regard. A short question for consideration before the Supreme Court was as follows:

Whether the appellant would be entitled to half share in the property of his father who is still alive and can seek a decree of partition on the premise of the property in question being ancestral/joint family property?

                FACTUAL DETAILS

In order to comprehend the crux of the case, the facts in nutshell may have to be narrated.

The first defendant’s sister G. Lalitha had filed a suit bearing C.S. No.1728 of 1993 for partition and possession of the divided share of N. Ramakrishnan, i.e., her deceased father. The suit of G Lalitha was decreed on the basis of a compromise dated 03.02.1994, whereunder the first defendant had got his share in a land to the extent of 1811 sq. ft.

The minor son was born to defendant no.1 on 06.01.1994. The minor son through his Mother had filed Original Suit No.1698 of 1997 (the appellant herein)  as minor through his mother, being natural guardian seeking relief of partition and possession of half share claimed by the appellant in the suit property, which is the land admeasuring 1811 sq. ft. As per the plaintiff/appellant the suit property being joint family property, belonging to his grandfather namely late N. Ramakrishnan, and has been inherited by him, along with his father, who was the first defendant in the suit. The present case revolves around the claim of the grandson as per the present suit in question.

The original defendant nos. 2 and 3 are purchasers of the suit property vide sale deeds dated 03.04.1997 and 17.04.1997 executed by the first defendant. The plaintiff/appellant herein, while seeking to establish his entitlement to half share in the suit property had pleaded that the first defendant was trying to alienate the suit property to deprive the valuable right of the plaintiff/appellant to the same. It is worthwhile to mention that no challenge to the compromise decree dated 03.02.1994 was made, nor any challenge were made to the aforementioned sale deeds executed in favour of defendant nos. 2 and 3. The relief sought was for partition and possession of half share to the plaintiff/appellant herein in the suit property.

The defendant no.2 and 3 had contested the suit on the premise that the first defendant was the absolute owner, by virtue of  the compromise decree dated 03.02.1994 and due consideration was paid by the defendants no.2 and 3 to the defendant no.1

It is not in dispute that the property originally belonged to the father of the first defendant, namely, late N. Ramakrishnan. The plaintiff/appellant is the son of the first defendant/respondent and being minor is represented by his mother and natural guardian.

For clarity it is reiterated that the plaintiff was born on 06.01.1994 and the suit for partition and possession of properties belonging to N. Ramakrishnan was filed by the first defendant’s sister namely G. Lalitha in the year 1993. The first defendant did not contest the suit filed by the appellant and had executed two sale deeds in favour of the defendant nos. 2 and 3 with regard to the property, which he obtained as a result of the partition decree under the compromise dated 03.02.1994.

The question answered by the First Appellate Court is as to whether the plaintiff acquired right by birth in the property which fell into the share of the first defendant/his father and as such is entitled to the decree of partition as prayed for. The first appellate court had held that as per the Class I heirs listed in the Schedule under Section 8 of the Hindu Succession Act, 1956, the son of a male dying intestate will become an absolute owner of the property which he derives from his father and holds the property as absolute one and his son has no right by birth over such property. When property devolved upon the sons and daughters per capita and not per stripes, each one of them was entitled to alienate their shares, particularly, when different properties were allotted in their favour and in a case of this nature, joint coparcenary does not survive. It was held that Section 6 of the Hindu Succession Act was not attracted to the facts of the case, as partition has taken place and the heirs/successors of the original owner N. Ramchandran became owners to the extent of the properties falling within their shares.

It was therefore held that when a son or daughter has got the property belonging to their father in a partition, whether it is ancestral or self-acquired property of the father, they became absolute owners of their respective shares and they can deal with the property exclusively excluding their sons. The grandson in such a situation does not get right from his father by birth, who is excluded by virtue of Section 8 of the Hindu Succession Act and he cannot become a coparcener in the property in question.

It is not in dispute that the suit property is an ancestral property belonging to N. Ramkrishnan and the divided share in the said property reached the hands of his son who became absolute owner, and his grandson, the appellant herein does not get interest in the property.

The legal precedents collated for the purpose may be referred to herein for ready reference and further elaboration of the same shall follow subsequently. The legal precedents are as under:

·       Shanmugha Udayar Vs. Sivanandam and others 1993 SCC OnLine Mad 99;

·       Rohit Chauhan Vs. Surinder Singh and others (2013) 9 SCC 419;

·       Arshnoor Singh Vs. Harpal Kaur, (2020) 14 SCC 436;

·       C.W.T. and others Vs. Chander Sen and others, (1986) 3 SCC 567;

·       Vimalben Ajitbhai Patel Vs. Vatslabeen Ashokbhai Patel and others (2008) 3 SCC 87;

·       Radha Bai Vs. Ram Narayan and others. 2020) 19 SCC 513;

·       Bhanwar Singh Vs. Puran and others, (2008) 3 SCC 87;

·       Yudhisthir Vs. Ashok Kumar, (1987) 1 SCC 204;

·       C.I.T Vs. M. Karthikeyan  1994 Supp. (2) SCC 112;

·       CIT v. Ram Rakshpal 1966 SCC OnLine All 429;

·       Khudi Ram Laha v. CIT, 1966 SCC OnLine All 435;

·       CIT v. Babubhai Mansukhbhai, 1975 SCC OnLine Guj 77;

·       CWT v. Mukundgirji, 1983 SCC OnLine AP 288;

As far as law laid down is concerned, it is consistently held that as per Class I heirs of the Schedule under Section 8 of the Hindu Succession Act, upon a Hindu dying intestate, the first class heirs namely, the heirs mentioned in Class I (Schedule-I) son, daughter, widow and brother shall take shares equally to the exclusion of the other heirs, including son’s son. The High Court has held that the plaintiff/appellant herein did not acquire right by birth in the property which came in the hands of his father by partition after the death of his grandfather and, hence he is not entitled to seek partition in the property.

                     Contentions of the appellant

(i)    Revolved around Section 29-A of the Hindu Succession (Tamil Nadu Amendment) Act, 1989;

(ii)   In a Joint Hindu Family governed by Mitakshara Law, son of a coparcener shall become a coparcener in his own right by birth, inclusive of the right to claim by survivorship;

(iii)   By virtue of Section 29-A inserted in the Hindu Succession Act, 1956 by the Tamil Nadu Amendment Act, 1989, the right of daughter of a coparcener to inherit in a coparcenary property by birth has been recognised, notwithstanding anything contained in Section 6 of the Hindu Succession Act, 1956;

(iv)   The significance of Section 29-A is that in a subsisting Mitakshara coparcenary governed by the Tamil Nadu amendment, a daughter/female member who qualifies the provision holds a coparcenary interest;

(v)    The statutory protection preserves eligible daughters’ coparcenary rights and leaves a son’s existing right by birth intact.

(vi)   Due to operation of Section 29-A, the compromise decree dated 03.02.1994, will not turn the nature of shares of coparcener determined therein into “self acquired property”, as by virtue of Clause (iii) of Section 29-A, the suit property continued to have incidents of “coparcenary” ownership.

(vii) It was further urged that Section 29-A of the Hindu Succession (Tamil Nadu Amendments) Act, 1989 inserted as Chapter II-A of the Hindu Succession Act, 1956 substituted Section 6 (1) so to provide coparcenary rights to daughters by birth and in the same manner as sons. The amendments passed by Tamil Nadu Legislature in 1989 effectively make daughters equal coparceners from 1989 onwards and this position has been affirmed by the Madras High Court in Shanmugha Udayar Vs. Sivanandam and others (Supra).

(viii) It was also pleaded that the appellant was born on 06.01.1994 and as such became a coparcener in the ancestral property of his grandfather with his birth only. Although the partition suit was instituted in 1993, but the decree came to be passed only on 03.02.1994 (after the appellant’s birth) and his father was allotted the subject property. The appellant was not made a party in the partition proceedings despite the suit having been decreed only after his birth and after he acquired coparcenary right in the subject property by birth. Mere fact of partition or separation from other branches does not destroy the coparcenary character as against the first respondent’s own son.

(ix)   The reference was made to Rohit Chauhan Vs. Surinder Singh and others (Supra) and Arshnoor Singh Vs. Harpal Kaur (Supra) to submit that the Supreme Court has distinguished partition of ancestral property from succession under Section 8 and recognized son’s interest upon birth and that on partition, the ancestral coparcenary property allotted to a coparcener remains a coparcenary property qua the allottee’s son.

Accordingly, it was canvassed by the appellant that the appellant’s half share recognised by the trial court must be protected and the High Court has erred in treating the mere allotment under a family partition as conclusive proof of the first respondents, being the individual owner without addressing the pleaded ancestral character, the appellant’s birth and the statutory scheme applicable in the State of Tamil Nadu. Therefore, the appellant’s father’s share did not become his self-acquired property and the rights of the grandson remained intact.

The pith and substance of the arguments on behalf of the appellant, thus, revolved around that the purchasers, namely, the original defendant nos. 2 and 3 cannot acquire greater right than their vendor, namely, the first respondent. The defendant’s no.2 and 3’s plea of absolute ownership, must therefore, according to the appellant, be tested against the appellant’s independent coparcenary claim. The trial Court’s finding that the property was ancestral, not controverted by the first respondent (father of the appellant), is also to be upheld. It is also canvassed that the first respondent was not competent to transfer the entire suit property, without determining/demarcating the share of the appellant coparcener. The property obtained by the first respondent was through partition, held by him as karta of a coparcenary property. The first respondent remained ex parte in the trial court, the High Court and before the Supreme  Court, until his death in the year 2024. Moreover, the onus of proving the legal necessity for sale of a coparcenary property has not been discharged by the first respondent.

Therefore, finally, it was submitted the trial court’s preliminary decree for partition of half share of the appellant is liable to be restored and the sale deeds dated 03.04.1997 and 17.04.1997 are to be held as not binding on the share of the appellant by setting aside the judgment and order dated 11.08.2010 of the High Court.

      

                     RESPONDENT’s PLEA

                           RESPONDENT’s PLEA

(i)    The present is a case of a male, i.e. grandson seeking succession in the property of his grandfather which would be governed by Section 8 of the Hindu Succession Act and heirs mentioned in Class I of the Schedule to Section 8 would be attracted. Section 6 of the Hindu Succession Act, 2005 or Section 29-A of the Hindu Succession (Tamil Nadu Amendment) Act, 1989 are not attracted.

(ii)   In the case of succession of a grandson has been that the grandson is clearly excluded from the heirs mentioned in Class I Schedule and the divided son gets absolute right with full power of alienation. Section 8 of the Hindu Succession Act, 1956 lays down the scheme of succession to the property of a Hindu dying intestate.

(iii) The schedule classifies the heirs on whom such property should devolve as those specified in Class I who took simultaneously to the exclusion of all other heirs.

(iv)   A son’s son is not mentioned as an heir under Class I of the Schedule, and, therefore he cannot get any right in the property of his grandfather under the said provision. The suit property which devolve on the first respondent upon the death of his father intestate after coming into force of the Hindu Succession Act, 1956 did not constitute HUF property consisting of his own branch including his sons.

(v)    The appellant though is aggrieved by the partition/compromise decree but he has not challenged the same so far. The suit property is no more an ancestral property and moreover the appellant’s father being alive when suit was filed, the appellant has no right to claim any share in the same. The original defendant nos. 2 and 3 namely respondent no.1 and 2 herein are innocent purchaser of the suit property and the suit filed by the appellant is a collusive suit with his father who had not turned up to contest the proceedings.

 

Reliance is placed on the Supreme Court decision in  C.W.T. and others Vs. Chander Sen and others, (1986) 3 SCC 567,  Vimalben Ajitbhai Patel Vs. Vatslabeen Ashokbhai Patel and others (2008) 3 SCC 87 and Radha Bai Vs. Ram Narayan and others. 2020) 19 SCC 513.

For the purpose of the discussion in relation to the facts of the case, it may be apt to reproduce Section 6 and 8 of Hindu Succession Act, 1956 prior to 2005 amendment, and Section 29-A of the Hindu Succession (Tamil Nadu) Act, 1989 are extracted hereinunder :-

The Hindu Succession Act, ‘1956’

“6. Devolution of interest in coparcenary property.―

When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act.

Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.

Explanation 1.- For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

Explanation 2.- Nothing contained in the proviso to this section shall be constructed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim or intestay a share in the interest referred to therein.”

8. General rules of succession in the case of males. ―

The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter: ―

(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;

(b) secondly, if there is not heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;

(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and

(d) lastly, if there is no agnate, then upon the cognates of the deceased.

Section 29-A of the Hindu Succession (Tamil Nadu Amendment) Act, 1989, as contained in Chapter II-A of the Tamil Nadu Act, inserted after Chapter II of the Hindu Succession Act, 1956:-

29-A. Equal rights to daughter in coparcenary property.-

Notwithstanding anything contained in section 6 of this Act,-

(i) in a Joint Hindu Family governed by Mitakshara

Law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as a son and have the same rights in the coparcenary property as she would have had if she had been a son, inclusive of the right to claim by survivorship; and shall be subject to the same liabilities and disabilities in respect thereto as the son;

(ii) at a partition in such a Joint Hindu Family the coparcenary property shall be so divided as to allot to a daughter the same share as is allotable to a son:

Provided that the share which a pre-deceased son or a pre-deceased daughter would have got at the partition if he or she had been alive at the time of the partition shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter:

Provided further that the share allotable to the predeceased child of a predeceased son or of a pre-deceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such predeceased child of the predeceased son or of the predeceased daughter, as the case may be;

(iii) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (i) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition;

(iv) nothing in this Chapter shall apply to a daughter married before the date of the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989;

(v) nothing in clause (ii) shall apply to a partition which had been effected before the date of the commencement of the Hindu Succession (Tamil Nadu Amendment) Act, 1989.

In Commissioner of Wealth Tax, Kanpur and others (Supra), the question considered by the Supreme Court was –

“Whether the income or asset which a son inherits from his father when separated by partition, could be assessed as income of Hindu undivided family of son or his individual income”?

It was then noted that though under the Hindu Law the moment a son is born he gets a share in the father’s property and becomes part of the coparcener. His right accrued to him not on the death of the father or inheritance from the father, but with the very fact of his birth. Normally, therefore, whenever the father gets a property from whatever source, from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the Hindu joint family of his son and grandson and other members who form joint Hindu family with him.

 

Hindu Succession act 1956 & Chander Sen (Supra) Any conflict?

The position of hander Sen (Supra) is affected by Section 8 of the Hindu Succession Act, 1956. The Hindu Succession Act, 1956 lays down the scheme of succession to the property of a Hindu dying intestate male. The first rule is that the property of a male Hindu dying intestate shall devolve according to the provisions of Chapter II and 7 (1986) 3 SCC 567 upon the heirs in Class I of the Schedule being relatives mentioned in Class I which reads as follows:-

“Son, daughter, widow, mother, son of a predeceased son, daughter of a predeceased son, son of a predeceased daughter, daughter of a predeceased daughter, widow of a predeceased son, son of a predeceased son of a predeceased son, daughter of a predeceased son of a predeceased son, widow of a predeceased son of a predeceased son.”

It may be noted that the heirs mentioned in Class I of the Schedule are son, daughter etc. including the son of a predeceased son, but does not include specifically the grandson, being a son of a living son. The question, thus was, when the son as heir of Class I of the Schedule inherits a property, (“as first respondent in the present case”), does he inherit that in his individual capacity or does he do so as karta of his own undivided family?

Having noted the divergent views expressed by different High Courts, it was observed and held in paragraphs 21, 22, 23 and 24 as under :-

21. It is necessary to bear in mind the Preamble to the Hindu Succession Act, 1956. The Preamble states that it was an Act to amend and codify the law relating to intestate succession among Hindus.

22. In view of the preamble to the Act, i.e., that to modify where necessary and to codify the law, in our opinion it is not possible when Schedule indicates heirs in class I and only includes son and does not include son's son but does include son of a predeceased son, to say that when son inherits the property in the situation contemplated by Section 8 he takes it as karta of his own undivided family. The Gujarat High Court's view noted above, if accepted, would mean that though the son of a predeceased son and not the son of a son who is intended to be excluded under Section 8 to inherit, the latter would by applying the old Hindu law get a right by birth of the said property contrary to the scheme outlined in Section 8. Furthermore, as noted by the Andhra Pradesh High Court that the Act makes it clear by Section 4 that one should look to the Act in case of doubt and not to the preexisting Hindu law. It would be difficult to hold today the property which devolved on a Hindu under Section 8 of the Hindu Succession would be HUF in his hand vis-a-vis his own son; that would amount to creating two classes among the heirs mentioned in class I, the male heirs in whose hands it will be joint Hindu family property and vis-a-vis son and female heirs with respect to whom no such concept could be applied or contemplated. It may be mentioned that heirs in class I of Schedule under Section 8 of the Act included widow, mother, daughter of predeceased son etc.

23. Before we conclude we may state that we have noted the observations of Mulla's “Commentary on Hindu law” 15^th Edn. dealing with Section 6 of the Hindu Succession Act at page 924-26 as well as Mayne's on “Hindu Law”, 12^th Edn. pages 918-919.

24. The express words of section 8 of The Hindu Succession Act, 1956 cannot be ignored and must prevail. The preamble to the Act reiterates that the Act is, inter alia, to 'amend' the law, with that background the express language which excludes son's son but included son of a predeceased son cannot be ignored.

In Bhanwar Singh (Supra), the Supreme Court has dealt with the applicability of Section 8 of the Hindu Succession Act, 1956, the properties in suit therein were partitioned between son and three daughters of the original owner. After partition the properties inherited in the share of son was mortgaged and later sold by him. The fact that the suit property at one point of time was a joint family property was admitted and the question which arose for consideration was as to whether the appellant had acquired any interest therein by his birth in the property of his grandfather died prior to his birth.

Having regard to Section 8 as also Section 19 of the Hindu Succession Act, 1956, it was held that the property ceased to be joint family property with the partition having taken place amongst the heirs of the grandfather/appellant therein. In such a case, a joint coparcenary did not continue. The interpretation of Section 8 of the Hindu Succession Act which came up for consideration in C.W.T Vs. Chandrasen (supra) was noted to further record that the principles evolved therein were reiterated by the Supreme Court in Yudhisthir Vs. Ashok Kumar, (1987) 1 SCC 204  and C.I.T Vs. M. Karthikeyan  1994 Supp. (2) SCC 112. It was held that Section 6 of the Hindu Succession Act, 1956, was not attracted to the facts of the said case, in view of the fact that son and daughters having partitioned their properties became owners to the extent of one-fourth share each and son had the requisite right to transfer the lands falling within his share.

Furthermore, in terms of Section 19 of the Act as son and daughters became tenants in common and took the property  devolve upon them as per capita and not per stripes, each one of them was entitled to alienate their share.

                     RADHA BHAI JUDGMENT

                           ANALYSIS

Recently, in Radha Bhai Vs. Ram Narayan and others (2020) 19 SCC 513, the question was as to whether the suit land inherited by late Janakram from his father Sukhdeo, the sole owner, became the ancestral property of the plaintiff on the date of death of Sukhdeo in 1965 and on the date of death of Janakram in 1982. According to the plaintiff/appellant therein, the suit property was admittedly, ancestral property in the hands of Sukhdeo after coming into force of Hindu Succession Act, 1956 with effect from 17.6.1956. Invoking Section 6 of 1956 Act, the appellant/plaintiff, the great granddaughter of Sukhdeo claimed the entire share of her father, being the sole surviving heir of the son of Janakram. It was urged that the sale deed executed by Janakram in the year 1979 was ex facie illegal and not binding on the appellant/plaintiff as Janakram had no authority to sell the ancestral property, which had settled in the coparceners after the death of Sukhdeo. The respondent/defendant therein on the other hand contended that the ancestral property was succeeded by two surviving sons of Sukhdeo namely Janakram and Pilaram equally, when the  succession had opened after the death of Sukhdeo in 1965. The appellant/plaintiff was not an heir in Class I at the relevant time being the great granddaughter of Sukhdeo, and, as such, she had no claim in the suit property in 1965. The reason being that the father of the appellant could not have succeeded to the property, during the lifetime of his father Janakram.

After the death of Sukhdeo, the suit property came to the exclusive share of Janakram and he had become absolute owner thereof. As Janakram held the suit property in his individual capacity, and not as a coparcener on behalf of his family members, he could alienate the same as per his volition to anyone. In such a situation, as per the settled law, the granddaughter of Janakram cannot be treated as an heir of Class I, or a coparcener so as to have a share in the suit property. Section 6 of the 1956 Act as applicable at the relevant time was taken into consideration and the decision in C.W.T Vs. Chandra Sen and others was noted in paragraphs 19, 20 and 21 as under:-

“19. In Chander Sen, this Court considered the interplay between Sections 4, 6 and 8 of the 1956 Act including Chapter II and heirs in Class I of the Schedule. The Court noted as follows: (SCC pp. 572-73, paras 10-12)

"20. The question here, is, whether the income or asset which a son inherits from his father when separated by partition, the same should be assessed as income of the Hindu Undivided Family of son or his individual income. There is no dispute among the commentators on Hindu law, nor in the decisions of the court that under the Hindu law as it is, the son would inherit the same as karta of his own family. But the question is, what is the effect of Section 8 of the Hindu Succession Act, 1956? The Hindu Succession Act, 1956 lays down the general rules of succession in the case of males. The first rule is that the property of a male Hindu dying intestate shall devolve according to the provisions of Chapter II and Class I of the Schedule provides that if there is a male heir of Class I then upon the heirs mentioned in Class I of the Schedule. Class I of the Schedule reads as follows:

'Son; daughter; widow; mother; son of a predeceased son; daughter of a predeceased son; son of a predeceased daughter, daughter of a predeceased daughter, widow of a predeceased son; son of a predeceased son of a predeceased son; daughter of a predeceased son of a predeceased son; widow of a predeceased son of a predeceased son."

21. The heirs mentioned in Class 1 of the Schedule are son, daughter, etc. including the son of a predeceased son but does not include specifically the grandson, being, a son of a son living. Therefore, the short question, is, when the son as heir of Class I of the Schedule inherits the property, does he do so in his individual capacity or does he do so as karta of his own undivided family?

Now the Allahabad High Court has noted that the case of CIT v. Ram Rakshpal (Supra)  after referring to the relevant authorities and commentators had observed that there was no scope for consideration of a wide and general nature about the objects attempted to be achieved by a piece of legislation, when interpreting the clear words of Mulla's Commentary on Hindu Law and the provisions of Section 6 of the Hindu Succession Act, that in the case of assets of the business left by father in the hands of his son will be governed by Section 8 of the Act and also made before us to Section 4 of the Hindu Succession Act. Section 4 of the said Act provides for overriding effect of Act. Save as otherwise expressly provided in the Act, any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in the Act and any other law in force, immediately before the commencement of the Act shall cease to apply to Hindus insofar it is inconsistent with any of the provisions contained in the Act.

Section 6 deals with devolution of interest in coparcenary property and it makes it clear that when a male Hindu dies after the commencement of the Act having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the Act. The proviso indicates that if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship."

20. Again in para 15: (Chander Sen case, SCC pp. 573-74):

"15. It is clear that under the Hindu law, the moment a son is born, he gets a share in the father's property and becomes part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore, whenever the father gets a property from whatever source from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. But the question is: is the position affected by Section 8 of the Hindu Succession Act, 1956 and if so, how? The basic argument is that Section 8 indicates the heirs in respect of certain property and Class I of the heirs includes the son but not the grandson. It includes, however, the son of the predeceased son. It is this position which has mainly induced the Allahabad High Court in the two judgments we have noticed, to take the view that the income from the assets inherited by son from his father from whom he has separated by partition can be assessed as income of the son individually. Under Section 8 of the Hindu Succession Act, 1956 the property of the father who dies intestate devolves on his son in his individual capacity and not as karta of his own family. On the other hand, the Gujarat High Court has taken the contrary view."

                     SUPREME COURT FINDINGS

Divergent views were expressed by the different High Courts:

View 1	View 2
·       Allahabad High Court ·       Madras High Court  ( Full Bench) ·       Madhya Pradesh High Court ·       Andhra Pradesh High Court	·       Gujarat High Court
LAW	LAW
CWT v. Mukundgirji, 1983 SCC OnLine AP 288 CIT v. Ram Rakshpal, 1966 SCC OnLine All 429 Khudi Ram Laha v. CIT, 1966 SCC OnLine All 435	CIT v. Ram Rakshpal, 1966 SCC OnLine All 429 CIT v. Babubhai Mansukhbhai, 1975 SCC OnLine Guj 77

 

After considering the divergent views expressed by the Allahabad High Court & the Full Bench of the Madras High Court, Madhya Pradesh High Court & Andhra Pradesh High Courts on one side and the Gujarat High Court on the other side,  it proceeded to opine as follows: (Chander Sen case, SCC pp. 577-78, paras 21-24).

"21. It is necessary to bear in mind the preamble to the Hindu Succession Act, 1956. The preamble states that it was an Act to amend and codify the law relating to intestate succession among Hindus.

22. In view of the Preamble to the Act i.e. that to modify where necessary and to codify the law. In our opinion it is not possible when Schedule indicates heirs in Cłass I and only includes son and does not include son's son but does include son of a predeceased son, to say that when son inherits the property in the situation contemplated by Section 8 he takes it as karta of his own undivided family.

The Gujarat High Court's view noted above, if accepted, would mean that though the son of a predeceased son and not the son of a son who is intended to be excluded under Section 8 to inherit, the latter would by applying the old Hindu law get a right by birth of the said property contrary to the scheme outlined in Section 8. Furthermore, as noted by the Andhra Pradesh High Court that the Act makes it clear by Section 4 that one should look to the Act in case of doubt and not to the pre-existing Hindu law. It would be difficult to hold today that the property which devolved on a Hindu under Section 8 of the Hindu Succession Act would be HUF in his hand visà- vis his own son; that would amount to creating two classes among the heirs mentioned in Class I, the male heirs in whose hands it will be joint Hindu family property vis-à-vis son and female heirs with respect to whom no such concept could be applied or contemplated. It may be mentioned that heirs in Class I of Schedule under Section 8 of the Act included widow, mother, daughter of predeceased son, etc.

23. Before we conclude we may state that we have noted the observations of Mulla's Commentary on Hindu Law, 15^th Edn. dealing with Section 6 of the Hindu Succession Act at pp. 924-26 as well as Mayne's on Hindu Law, 12th Edn., pp. 918-19.

24. The express words of Section 8 of the Hindu Succession Act, 1956 cannot be ignored and must prevail. The Preamble to the Act reiterates that the Act is, inter alia, to "amend" the law, with that background the express language which excludes son's son but includes son of a predeceased son cannot be ignored."

Another decision of the Supreme  Court in Yudhisthir case (supra) wherein Chander Sen was quoted with approval, has also been noted in paragraph 22 as under:-

22. This decision has been quoted with approval in Yudhishter case. In para 10 of the said decision, the Court observed thus: (SCC pp. 110-11)

"10. This question has been considered by this Court in CWT v. Chander Sen where one of us (Sabyasachi Mukharji, J.) observed that under the Hindu law, the moment a son is born, he gets a share in father's property and becomes part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source, from the grandfather or from any other source, be It separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. The Supreme Court observed that this position has been affected by Section 8 of the Hindu Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as karta of his own undivided family but takes it in his individual capacity.

At pp. 577 to 578 of the Report, the Supreme  Court dealt with the effect of Section 6 of the Hindu Succession Act, 1956 and the commentary made by Mulla, 15th Edn., pp. 924-26 as well as Mayne's Hindu Law, 12th Edn. pp. 918-19. Shri Banerji relied on the said observations of Mayne’s Hindu Law, 12^th Edn., at pp. 918-19. This Court observed in the aforesaid decision that the views expressed by the Allahabad High Court , the Madras High Court the Madhya Pradesh High Court and the Andhra Pradesh High Court appeared to be correct and unable to accept the views of the Gujarat High Court. To the similar effect is the observation of learned author of Mayne's Hindu Law, 12th Edn., p. 919. In that view of the matter, it would be difficult to hold that property which devolved on a Hindu under Section 8 of the Hindu Succession Act, 1956 would be HUF in his hand vis-à-vis his own sons. If that be the position, then the property which devolved upon the father of the respondent in the instant case on the demise of his grandfather could not be said to be HUF property. If that is so, then the appellate authority was right in holding that the respondent was a licensee of his father in respect of the ancestral house."

In the facts of the said case i.e Radha bhai (Supra) , having noticed that Sukhdeo had inherited ancestral property and was alive till 1965, whereas, father of the appellant (son of Janakram) predeceased Sukhdeo (his grandfather) in 1957 and Janakram, son of Sukhdeo had died in 1982, and that during the lifetime of Janakram, in terms of Section 6 of 1956 Act, the father of the appellant could not have succeeded to the property as he could claim only through Janakram who was alive till 1982, it was held that when father of the appellant had no claim in his own rights, hence the question of the appellant (being his daughter), succeeding to the property does not arise. It was thus noted in paragraphs 25 and 26 and held in paragraph 27 that :-

“25. The consistent view of the Supreme  Court, including of the three- Judge Bench, is that the grandson or granddaughter is clearly excluded from heirs in Class I. Saheblal himself was grandson of Sukhdeo, who predeceased Sukhdeo. After the demise of Sukhdeo in 1965, therefore, the ancestral suit property could be and came to be partitioned between Janakram and Pilaram in 1967. As a result of that partition, the suit property came to the exclusive share of Janakram in his individual capacity. He could, therefore, legitimately dispose of the same in the manner he desired and which he did in favour of his grandsons (Defendants 1 to 3, respectively) vide registered sale deed dated 21-7-1979.

In Radha bhai (Supra), neither the stated partition of 1967 nor the registered sale deed in favour of the respondents (Defendants 1 to 3) dated 21-7-1979 has been challenged. The relief sought in the suit, as filed by the appellant-plaintiff is only for partition and awarding share to the appellant-plaintiff along with possession. Suffice it to observe that the granddaughter of Janakram  could not have claimed a higher right than the right of her father Saheblal. Reliance placed by the appellant on the decision of the Supreme Court in Gurupad Khandappa Magdum, is inapposite. In that case, the plaintiff, being heir in Class 1, claimed to have share in the interest of her husband which he had at the time of his death in the coparcenary property. In that view of the matter, in terms of the proviso to Section 6 of the 1956 Act, the interest of her husband in the coparcenary property would devolve by succession under the 1956 Act. Similarly, in Raj Rani, the Court was called upon to consider the dispute between the widow, three sons and three daughters of the deceased who being heirs in Class I had succeeded to interest in equal shares, as the property in question was Mitakshara coparcenary property, by virtue of Explanation I of Section 6 of the 1956 Act. That analysis can be discerned from para 17 of the reported judgment. Even the recent decision of this Court in Ramesh Verma, does not take the matter any further for the appellant. Inasmuch as, even in that case, the dispute was between the heirs concerned in Class I after the demise of Bhagwan Das. Before commencement of the 1956 Act, the notional partition had taken place and as per Section 82 of the Madhya Bharat Land Code, his sons and wife became entitled to get 1/3^rd  share in the property. On partition, share had fallen to one of the sons which became his separate property and no longer remained a Mitakshara property.

The view that after the death of Sukhdeo in 1965, in Radha Bhai (Supra) the property devolved upon his two sons Janakram and Pilaram. They succeeded to the ancestral property equally. They later effected partition in 1967, as a result of which, the property came to the exclusive share of Janakram. The father of appellant, Saheblal, had predeceased his father Janakram and even his grandfather Sukhdeo. During the lifetime of Janakram, Saheblal could not have succeeded to the property and for the same reason, the appellant being his daughter cannot be heard to claim any right higher than that of Saheblal. Applying the settled legal position, the grounds urged by the appellant need to be rejected.

Reverting to the factual matrix of the present case J. Rajesh (Supra), it is noticed that the heirs of N. Ramakrishnan inherited his property, being Class I Schedule heirs having right of succession under Section 8 of the Hindu Succession Act, 1956. Section 8 of Hindu Succession Act, 1956 lays down the scheme of succession to the property of a Hindu male dying intestate. The schedule classified the heirs on whom such property should devolve, those specified in Class I took simultaneously to the exclusion of all other heirs. A son’s son is not mentioned as an heir under Class I of the Schedule, and, therefore he could not get any right in the property of his grandfather under the provision. In the codified Hindu Law of the Hindu Succession Act, 1956, the right of a son’s son in his grandfather’s property during the lifetime of his father which existed under the personal Hindu Law as enforced before the Act 1956, was not saved expressly by the legislature while enacting the Hindu Succession Act, 1956. Section 8 of the Hindu Succession Act, 1956 is to be read as a self-contained provision laying down the scheme of devolution of the property of the Hindu male dying intestate.

Consequently, upon death of N. Ramakrishnan, the grandfather of the appellant herein, the property devolved on his Class I Schedule heirs as per Section 8 of the Hindu Succession Act, 1956 and did not constitute HUF property of son consisting of his own branch including the grandson. The surviving sons and daughters of N. Ramakrishnan, the Hindu male dying intestate, shall each take one share being Class I Schedule heirs. The partition among the Class I heirs was opened upon the death of N. Ramakrishnan, (whose date of death has not been disclosed), with the filing of the partition suit in 1993 by one of the coparceners wherein settlement had been arrived between the heirs. Under the compromise decree in terms of the settlement dated 03.02.1994, each of the heir became exclusive owner of the property falling within his/her share. The father of the appellant whose shares are divided in terms of the compromise decree pursuant to the settlement dated 03.02.1994, became exclusive owner of the property falling in his share. With the partition, the property of N. Ramakrishnan the grandfather of the appellant ceased to be joint family property, inasmuch as, all heirs succeeded the same as tenant in common and not as joint tenant, and joint coparcenary did not continue.

The succession having been opened with the death of N.Ramakrishnan, evidently before the appellant was born, inasmuch as partition suit was filed in the year 1993, there is no question of devolution of interest in the suit property upon the appellant.

In J. Rajesh ( Minor), therefore, the following conclusive paragraphs shall be worthy of reiteration for reinforcing law in this regard. The same are as under:

37. From the averments made in the memo of appeal, it seems that parents of the appellant got married on 01.03.1993 and the partition suit namely C.S. No. 1728 of 1993 seeking partition and separate possession of the properties of N. Ramakrishnan, the grandfather of the appellant (father of the first respondent herein) was filed in 1993. The appellant was born on 06.01.1994 and the settlement was arrived on 03.02.1994. The father of the appellant was still alive and was impleaded as a first defendant in the suit filed through the mother in the year 1997 on the premise of the appellant having inherited coparcenary rights in the property of his grandfather by birth.

38. As noted hereinbefore this Court in C.W.T Vs. Chandrasen (supra) has considered the interplay between Section 4, 6 and 8 of the Act 1956 including Chapter II and heirs in Class I of the Schedule and has held that as per the codified Hindu law when schedule indicates heirs in Class I and only includes son and does not include son’s son but does include son of a predeceased son, to say that when son inherits the property in the situation contemplated by Section 8 he takes it as Karta of his own undivided family, would be impossible. It would be difficult to hold that the property which devolved on a Hindu under Section 8 of the Hindu Succession Act would be HUF in his hand vis-à-vis his own son as that would amount to creating two classes among the heirs mentioned in Class I, the male heirs in whose hands it will be joint Hindu family property and vis-à-vis son and female heirs with respect to whom no such concept could be applied or contemplated. The express words of Section 8 of the Hindu Succession Act, 1956 cannot be ignored and must prevail.

39. To the contention of the appellant that he got share in his grandfather’s property and became part of the coparcenary with his birth, it is to be seen that the unamended Section 6, as noted before, as it originally stood prior to 2005, provided for devolution of interest in the Mitakshara coparcenary property, at the time of death of a male Hindu after commencement of 1956 Act, by survivorship, upon the surviving members of the coparcenary. In the instant case, the date of death of N. Ramakrishnan, the grandfather has not been indicated and the suit for partition among Class I heirs was filed in the year 1993, evidently the provisions of Section 6 of the Hindu Succession Act, 1956 or Section 29(A) inserted by the Tamil Nadu Amendment Act, 1989 would have no application in the facts and circumstances of the present case. From this perspective as well, the appellant cannot become a coparcener as he was not a “surviving coparcener” on the death of N. Ramakrishnan.

40. Much after the partition of the property devolved upon Class I heirs of N. Ramakrishnan when each of the divided shares became exclusive property of the co sharers and sold by father of the appellant, without challenging the partition decree or the sale deeds executed by father of the appellant, during the lifetime of father, the suit for partition has been filed in the year 1997 on behalf of the minor on the premise of inheritance as coparcener by birth.

41. Finally, in view of the general rule of succession in the case of property of a male dying intestate, under the provisions of Chapter II of the Hindu Succession Act, 1956, the property of N. Ramakrishnan (grandfather of the appellant) devolved upon the Class I heirs in the order of succession specified therein, and they shall take the property simultaneously to the exclusion of all other heirs. With the partition decree, the property of N. Ramachandran falling in the share of the father of the appellant became his exclusive property in his individual capacity and cannot be said to be coparcenary. There is no question of devolution of the property once partitioned and became exclusive individual property of the first respondent upon the appellant herein so as to recognise his right on the premise of attaining coparcenary rights with his birth.

The Supreme Court , therefore had dismissed the appeal in view of the foregoing reasons.

                                  -----

                            Anil k Khaware    

Founder & Senior Associate

Societylawandjustice.com

 

GIFT IN MUSLIM LAW: FETTER OR LIMITATION DEFINED

 

GIFT IN MUSLIM LAW:  FETTER OR LIMITATION DEFINED

 

One of the common modes of transfer of properties amongst Muslims is conveying that by way of a gift and therefore it is imperative to cull out in detail as to how and in what manner the gifts could be executed and its fallout on the beneficiary or whether the Will could be conditional and if that is so, then such Will may not be capable of being acted upon as the conditions imposed on the Will shall necessarily follow. The authorities in the context, though, being scarce, nevertheless, clear picture shall emerge on the basis of some of the judicial precedents. It may be worthwhile to reproduce the section 129 of TPA:

129. Saving of donations mortis causa and Muhammadan Law: Nothing in this Chapter relates to gifts of movable property made in contemplation of death or shall be deemed to affect any rule of Muhammedan law.  

It is not in dispute that gifts under the Transfer of Property Act 1882 ( In short “TPA”) excludes Muslims, in as much as Section 129 of  TPA relates to gift of immoveable property however exception is carved out and it excludes two categories of gifts i.e (i) Gift of moveable property made in contemplation of death and (ii)  any Rule of Muhammadan law.

As a necessary corollary thereto, the general provision of TPA i.e Sections 123 or section 17 of the Registration Act do not apply to Muslims. However, as the gifts also constitute a mode of conveyance to a donee by a donor and there is no embargo in Muhammadan law so far as bequeathing or making gift of 1/3^rd of the property owned by a donor. The discussion, therefore, in the context shall be of immense significance.      

The interesting case with a view to navigate on the element of gift in case of Muhammadens is a Supreme Court judgment in a matter captioned as V. Sreeramachandra Avadhani (D) By LRs. vs Shaik Abdul Rahim (2014) 9 SCC 350 and in CIVIL APPEAL No.2364 OF 2005 pronounced on 21^st  August, 2014 has laid down  the law on the finer aspects of the gift and applicability of gift deed as regards the deed executed by Muslims.                                                       

The factual matrix, shorn with unnecessary details are to be culled out. One Sheikh Hussein was married to Banu Bibi. During the subsistence of his matrimonial ties, Sheikh Hussein had 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. Undisputedly,  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.

                Life Interest in Gifted property

It is a matter of record that on 02.05.1978, Banu Bibi sold the gifted immovable property, to V. Sreeramachandra Avadhani. The legal heirs of Sheikh Hussein, namely, Shail Abdul Rahim and Shaik Abdul Gaffoor, upon the demise of Banu Bibi issued a legal notice to the vendee and staked a claim on the abovementioned gifted immovable property. It is also borne out of record that Banu Bibi died on 17.02.1989.

It was asserted in the notice, that, Banu Bibi had only a life interest in the gifted immovable property; and that the LRs of Sheikh Hussein, being his legal representatives (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.

In the aforesaid situation as emerged, the LRs of Sheikh Hussein  preferred a suit bearing O.S.No.256 of 1989, before the Subordinate Judge, Eluru, West Godavari District, Andhra Pradesh was preferred for a declaration of title, over the "tiled house" with open space, gifted by Sheikh Hussein to his wife Banu Bibi recovery of possession, along with mesne profits, from the vendee V.Sreeramachandra Avadhani. The above Original Suit filed on 13.11.1989. A written statement was filed on 19.07.1990.

                Gift Deed and usufruct: Distinction

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.

                                Appellate Court

Dissatisfied, the LRs of Sheikh Hussein  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 Bhanu Bibi 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."

According to the 1^st appellate court, this recital itself on the face value shall reflect, that, Bhanu Bibi has no right to alienate the 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 Bhanu Bibi has no children. Further admittedly Shaik Hussain Saheb died earlier to Bhanu Bibi. 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 Shaikh 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 1^st 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."

What is worth mentioning, though, in the context is that a bare 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.

This was the backdrop of preferring appeal before the high court.

High Court

As stated, being dissatisfied, it was the turn to the vendee to approach the High Court of Judicature of Andhra Pradesh, at Hyderabad  against the first appellate court order. of Judicature of Andhra Pradesh, at Hyderabad. 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 Bhanu Bibi 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."

Since, the appeal filed by the donee against the judgment rendered by the first appellate court did not find favour with the High Court, the appellant has approached the Supreme Court.

                                        SUPREME COURT

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

According to the Supreme Court,  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).

                                ANALYSIS

During the course of hearing, on behalf of the appellants reliance were placed 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:-

(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."

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. Ref: 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."

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

The reliance was also placed on behalf of the appellants 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 as under:

1^st . 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.

2^nd . 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.

3^rd. 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.

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.

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 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."

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

                                FINDINGS

Having placed reliance on different commentaries noticed above, learned the appellants referred to the decision rendered by the Privy Council in Nawazish Ali Khan’s case (supra). It was contended that the texts brought to the notice of the court, were expressly approved, in the above judgment. The reliance were placed 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 be- tween 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  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 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 be- quests of this nature as well as bequests of actual property. 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 owner- ship unlimited in duration, but recognises interests of limited duration in the use of property.

According to the Supreme Court, there is a full discussion of the law on this subject in the judgment, of Sir Wazir Hasan in the case of Amjad Khan Vs  Ashraf Khan 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 in- valid 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 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 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 3^rd edition of Tyabji’s Muhammadan Law at pp. 487 et seq:

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 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 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."

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).

It was thus held:

“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 owner- ship, 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 

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 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 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 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."

According to the Supreme Court, therefore, it was further held as under:

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 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.

According to Supreme Court, 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.

Therefore, the Supreme Court held, in view of the aforesaid analysis, that, 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. The obvious corollary to it is 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. As such, while applying the principles of Muhammedan Law as expressed in recognized texts, and the decision of the Privy Council in Nawazish Ali Khan’s case (supra) the only inference that emerges is 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. What therefore follows is that the conditions depicted in the gift deed relating to donee not having 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, from the above discussion it will be further apparent that the condition 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.

As it is held that the gift deed dated 26.04.1952, thereby irrevocably vesting all rights in the immovable property in Banu Bibi, it is natural 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, was held to be not sustainable in law.

Accordingly, the Supreme Court while allowing the appeal was pleased to affirm the order passed by the trial court dated 19.08.1998 and the orders passed by the First Appel- late Court dated 05.01.2004, and by the High Court dated 02.08.2004, were set aside.

                                       

LAW APPLICABLE ON SHIAS

The aforesaid discussion shall only be partial, if law and effect of gift in respect of Shias are not dealt with. To do completeness, it is analysed herein. The decision rendered by Allahabad High Court in a matter captioned as Someshwar vs Barkat Ullah And Ors AIR 1963 ALL 469, AIR 1963 ALLAHABAD 469 relating to the broad contour of law applicable to gifts executed by Shias and may be treated as magnum opus..

To narrate the facts, as may be imperative for a correct import of the issue herein, one Hamid Ali, a Shia Muslim, made a gift of the property in question in favour of Someshwar on 21^st April, 1945 & later a sale deed was also executed by him in respect of this very property along with some other properties on 6^th September, 1945, in favour of Barkat Ullah and Nawab Hasan, plaintiffs 2 and 3 in the suit. It was Someshwar, who had filed a suit for pre-emption on the basis of that sale deed in respect of property, other than the one covered by the gift deed, being suit No. 470 of 1946.

Another suit was filed by Hamid Ali, Barkat A!i and Nawab Hasan, bearing suit no. 514 of 1945, for the cancellation of the gift deed on the ground that it was revoked by Hamid Ali and for possession over the property, in case the plaintiffs were found to be out of possession.

The suit filed by Hamid Ali and others was decreed by the trial Court and the suit for pre-emption was dismissed. An appeal was filed against the dismissal of that suit, but it became infructuous after the abolition of zamindari in the State.

According to the appellant in the other suit,  before the trial Court as well as in first appeal it was contended that that the gift in his favour was a hiba-bil-iwaz and was not, therefore, liable to be revoked. The appellant, being a Hindu, the Muslim law relating to revocation of a gift did not apply to him, and that the gift-made in his favour by the respondents could not be revoked. These were the two points along with two other minor points to which reference will be made later, which were pressed in this appeal and no reference may, therefore, be made to the other allegations of the parties.

hiba and not hiba-bil-iwaz

It is a matter of record that the Courts below had held that the gift in favour of Someshwar was not a hiba-bil-iwaz, but a hiba, pure and simple, and it has further been held that it will be the Muslim law applicable to the revocation of such gift, which will be applicable to the facts of the case, even though the donee is a Hindu. Predicated on these findings, that the suit was decreed by the trial Court, and that decree was upheld in first appeal.

Hamid Ali died during the pendency of the suit, and one of the points raised during the hearing of this appeal, was if the right to revoke the gift survived. The parties agreed that the donor Hamid Ali, was a Shia; and, therefore, to the extent the Shia law relating to gifts differs from the general Mohammadan Law, it will be that law which will apply. Under the Shia law a donor may revoke a gift by mere declaration without any proceedings in Court, and if, therefore, the gift in favour of the appellant was a mere hiba and not hiba-bil-iwaz, Hamid Ali was entitled to revoke it by mere declaration and in that view this contention has no force. The appellants' contention was that the death of Hamid Ali during the pendency of the suit, i.e., before the suit was decreed, would make the suit for revocation ineffective. Since the donor was a Shia,  decree for revocation of the gift was not necessary. Mere declaration on his part that the gift was revoked is enough.

The question is whether the gift was a hiba or a hiba-bil-iwaz. It purports to have been made in favour of Someshwar in consideration of the services rendered by his father Kallu Kachhi for a period of 25 or 30 years in respect of tahsil wasul (collection work). It was recited in in the gift deed that Hamid Ali was very much pleased with the discharge of duties by him and wanted to compensate him for it. The gift was, therefore, made in consideration of the faithful discharge of duties by Someshwar's father during a period of 25 or 30 years. There is no indication in the gift deed that Kallu was serving Hamid Ali gratis, i.e., without any payment. In one place it was stated : "Uske khidmatguzari se bahut khush hun." These words would indicate that Kallu was in the service of Hamid Ali and he was very much pleased with the discharge of his duties. The question is :

Whether the gift made to the son of an ex-employee or even a present employee in consideration of the faithful discharge of his services would be a gift with or without any consideration?

No doubt, 'consideration' for purposes of this discussion has to be understood in the sense of 'iwaz' under the Mohammadan Law, for even love and affection on regard for past services would be 'consideration' under the Contract Act or even for purposes of transfer of properties governed by the Transfer of Property Act.

In Rahim Baksh v. Muhammad Hasan, 1LR 11 All 1 the Allahabad High Court has held by Straight and Mohmood, JJ. that the conception of hiba-bil-iwaz, as understood in the Muhammadan Law, is a transaction made up of two separate acts i.e., of mutual or reciprocal gift of specific between two persons, each of whom is alternatively a donor and a donee and that it does not include the case of a gift in consideration only of natural love and affection or of services or favours rendered. Reference is made in the body of the judgment to Baillie's Digest of Mohammadan Law. On page 532 of the 1865 edition of that book, Baillie mentions:

"No one can doubt that 'fact in the case of the services of a physician. Where a physician has attended a patient and. has up to a certain time charged nothing for his services, it may still be open to him to bring a claim in respect of such services. If the patient chooses to assign property to the physician in consideration of the money value of the services which the physician has rendered him (with respect to which the physician could file a claim against him), the case would be very similar to the case where a woman foregoes her claim to dower debt against her husband receiving in return a grant of property. Such a transaction is recognised as a good hiba-bil-iwaz amongst Sunni Muhammadans governed by the Hanafi Law in India. If past services are of this nature, they must provide adequate consideration for a gift so as to make it a hiba-bil-iwaz. The view expressed by Wazir Hasan, A.J.C. in AIR 1925 Oudh 518 should not therefore, go beyond it. It cannot, therefore, be said that even according to the view taken by Stuart, J. C. or Wazir Hasan, A.J.C. (as they then were), past services of whatever nature would be regarded as iwaz so as to make a gift a hiba-bil-iwaz. The services of an employees are of a different nature. He is adequately paid lor the same. If during the course of his employment he had been faithfully discharging his duties, his employer would no doubt be pleased with him. In case, the done is moved by that consideration and is inclined to make a gift of property either in his favour or in favour of his son at any time in the future, the gift is not in lieu of any iwaz, though the consideration of love and affection for the employee would still be there. In that sense the view taken by in ILR 11 All 1 should prevail. A gift in consideration only of natural love and affection or of services or favours rendered in the past as an employee would not be a hiba-bil-iwaz.

The gift made by Hamid Ali in favour of Someshwar was, simplistically put, remained a hiba as understood in the Monammadan Law and was liable to be revoked by the donor; and as the donor was a Shia he could do so by a mere declaration of his intention to do so.

The next question raised was that if the donee is a Hindu the Muhammadan Law relating to the revocation of a gift would not apply to him. Reliance was placed on two decisions of the Madras High Court reported in Kunhacha  Umma Vs Kutti Mammi Hajee ILR 16 Mad 201 and P. Pathumma v. Kunniyai Parkum Siyali, ILR 31 Mad 228. However, neither of the two cases were held to be applicable to the facts of the present case. In these two Madras High Court cases A, a Muslim, made a gift in favour of B and C, who were not governed by the Muhammadan Law. The question for decision in these cases was whether after the property had been gifted to B and C, its further devolution was to be governed by the law applicable to B and C or by the Muhammadan Law, which was applicable to A, and it was held that the law applicable to the further devolution of the property would be the one which B and C were governed and not the law by which A was governed; and no exception can possibly be taken to that view.

In the present case, the question involved for decision in the is whether Hamid Ali made the gift of the property to Someshwar, subject to the law by which he himself was governed of or subject to the law by which the donee was governed. When Someshwar obtained a gift from Hamid All, he did so subject to all the limitations to which the gift was subject and one of those limitations was the right of the donor to revoke the gift according to the personal law applicable to him. The reliance placed by the respondent on Mt Tabera Vs Ajodhya Prasad, AIR 1929 Pat 417. In that case A, a Muslim made a gift of property to B, a Hindu, without executing any document but accompanied by delivery of possession. He later on sold that property to C. When a suit was filed for possession over this property against B, it was contended on behalf of C that there being no registered document executed under the Transfer of Property act by which the donee B was governed, the sale in his favour was not perfect, But it was held that the donor, being a Muslim, a gift made by him was not governed by the provisions of the Transfer of Property Act, but by the personal law which was applicable to him.

                                RIGHT TO PREEMPTION

Where a Muslim sells property to B, a Hindu, and C a Muslim files a suit for pre-emption, a question has often been posed for decision whether in view of the fact that the vendee is not a Muslim, a suit for pre-emption would lie; and it has been held that the property having been transferred by a Muslim, it is subject to the Muhammadan law of pre- emption and that if the pre-emptor is a Muslim, a suit for pre-emption under the Mohammadan Law would lie, even though the vendee may be a Hindu.

The case of pre-emption may be cited as an instance of the law which should apply in such cases. This is at the view taken by Allahabad High Court in Gobind Dayal v. Inayatullah, ILR 7 All 775 and Abbas Ali v. Maya Ram, ILR 12 All 229.

In a reverse case, in which the transferor is a Hindu and the transferee a Muslim, may be cited as a more familiar Illustration to explain more clearly as to which law should fee applicable in such cases. Under Section 14 of The Hindu Succession Act all limited owners of property under the Hindu law have become full owners thereof. One may however may relate prior to the facts which existed prior to the enactment of the Hindu Succession Act. If A, a member of joint Hindu family, or B a Hindu widow, transferred property to a Muslim without legal necessity, did the property cease to be subject to the law applicable to transfers by a Manager of a joint Hindu family or by a limited owner, or the transferee took the property subject to such law, the transfer being avoidable by other members of the joint family in one case and by next reversioners in the other?

The mere fact that the transferee is a Muslim, would not entitle him to say that the property ceased to be subject to Hindu Law and he got an absolute right in the same. Similarly, where A, a Muslim, makes a gift of property, the gift would be subject to the obligations imposed upon the gift under the Muhammadan Law and the mere fact that the donee is a Non-Muslim, the transaction would not cease to be subject to the limitations imposed upon it under the Muhammadan Law.

It was therefore held that the gift was subject to the Muhammadan law relating to gifts and since the gift of this nature could be revoked by the donor, it was liable to be so revoked even though the donee was a Hindu.

Suffice to indicate in the aforesaid context that law as regards gifts as applicable to Muslims are vastly different in case of Sunni and Shias. The aforesaid discussion has reflected that on the basis of limited jurisdictional precedents available in this regard.

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                        Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com