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 1/3rd
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 21st 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 1st 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 1st defendant
has not filed any document of the said to confirm his right. Hence this Court
holds that, the plaintiffs are the absolute owners of the property and they are
entitled for declaration of the suit schedule property. Hence this issue is
decided in favour of the plaintiffs and against the defendants."
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:
1st
.
That it establishes a right of property in the donee, without being obligatory
on the donor; so that the gift may be validly resumed or cancelled.
2nd
. That it cannot be made subject to a condition; though if a gift were made
with an option to the donee for three days, and were accepted before the
separation of the parties, it would be valid.
3rd.
That it is not cancelled by vitiating conditions; so that if one should give
his slave on condition of his being emancipated, the gift would be valid, and
the condition void.
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 3rd 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 21st April, 1945 & later a sale deed
was also executed by him in respect of this very property along with some other
properties on 6th 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.
-------
Anil
K Khaware
Founder & Senior Associate
Societylawandjustice.com
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