Supreme Court of India
V. SREERAMA CHANDRA AVADHANI (D) BY LRS.versusSHAIK ABDUL RAHIM AND ANR.
- Citation
- 2014 INSC 555
- Decided
- 21 August 2014
- Disposal
- Appeal(s) allowed
- Bench
- S KHEHARR F NARIMAN
Holding
The 26‑04‑1952 deed transferred the corpus of the immovable property, making the conditions void; thus the sale to the appellant was valid and the respondents have no claim.
Summary
Sheikh Hussein executed a gift deed on 26‑04‑1952 gifting an immovable property to his wife Banu Bibi. The deed contained conditions restricting alienation and stipulating that the property would revert to the donor or his heirs if Banu Bibi had no children. After Banu Bibi sold the property to V. Sreeramachandra Avadhani, the legal representatives of Sheikh Hussein claimed a life‑interest only and sought to recover the property. The Supreme Court examined Mohammedan law on gifts, holding that a gift of the corpus must be unconditional and any conditions are void, whereas conditions are permissible only in a usufruct gift. The Court found that the deed transferred the corpus, not merely usufruct, and therefore the conditions were void. Consequently, the sale to the appellant was valid and the respondents' claim after Banu Bibi’s death was unsustainable.
Issues considered
- Whether a gift deed under Mohammedan law that imposes conditions is valid and whether such conditions are void.
- Whether the 26‑04‑1952 gift deed transferred the corpus of the property or merely a usufruct.
- Whether the sale of the gifted property by Banu Bibi to the appellant is legally effective.
- Whether the respondents, as legal representatives of the donor, have any title to the property after the donee’s death.
Subjects
Mohammedan lawgift (hiba)conditional giftcorpususufructvoid conditionsproperty transfersale validityinheritance
Judgment
[2014] 13 S.C.R. 1096
A V. SREERAMACHANDRAAVADHANI (D) BY LRS.
v.
SHAIKABDUL RAHIMANDANR.
(Civil Appeal No. 2364 of 2005)
B
AUGUST 21, 2014
[JAGDISH SINGH KHEHAR AND
ROHINTON FALi NARIMAN, JJ.]
c Mohammedan Law - Gifts (hiba) - Conditional gifts -
Nature and effect of- Held: Under Mohammadan 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 - Conditions are however
0 permissible, ifthegiftismerelyofausufruct-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) - In a gift
· which contempiates the transfer of the corpus, there is no
question of such transfer being cenditional - The transfer
E is absolute - Conditions imposed.in a gift of the corpus are
void -- On facts, the gift deed in question contemplated
transfer of the corpus and not the usufruct - Clearly, the
intention of the donor in the gift deed, was to transfer the
corpus of the immovable property to the donee, and not
F merely a usufruct therein - Since the donor through the gift
deed had transferred the corpus of the immovable property
to the donee (his wife), the gift deed was valid-All conditions
depicted in the gift deed curtailing use or disposal of the
property gifted were ther:efore void - Since the gift deed
G irrevocably vested all rights in the immovable property in
the donee, subsequent sale of the gifted immovable property
by the donee wife to appellant was legal and valid, and
consequently, the claim of respondents to the gifted property,
on the demise of the donee wife, not sustainable in law.
H
1096
V. SREERAMACHANDRAAVADHANI (D) BY LRS. v. 1097
SHAIKABDUL RAHIM
'S', a Muslim gentleman, executed a gift deed on A
26.04.1952, thereby gifting an immovable property in
favour of his wife 'B'. 'B' enjoyed the property during the
lifetime of 'S'; and even after his demise in 1966,
continued to exclusively enjoy the property. On
02.05.1978, 'B' sold the gifted property to appellant. 'B' B
died on 17.02.1989. On her demise, the respondents
issued a legal notice to the vendee-appellant staking a
claim on the said gifted property asserting, firstly, that
'B' had only a life interest in the gifted property; and
secondly, that the respondents being the LRs of 'S' came c
to be vested with the right and title over the gifted
property, after the demise of 'B'.
The suit filed by the respondents was dismissed
by the trial court. The trial court held that 'S' had gifted
the corpus of the immovable property to his wife 'B'; and D
all the conditions expressed by the donor 'S', in the gift
deed dated 26.04.1952, depriving the donee 'B' of
absolute right/interest in the gifted property, were void;
and that the gift deed dated 26.04.1952, was not in the
nature of a usufruct. The First Appellate Court did not E
examine whether the gift deed dated 26-04-1952,
constituted transfer of the corpus of the property, or
merely its usufruct; and held that 'B' had merely been
transferred a life interest in the property gifted to her on
26.04.1952. The High Court also did not take into F
consideration whether the gift was in respect of the
corpus of the immovable property, or its usufruct and
affirmed the determination recorded by the FirstAppellate
Court.
In the instant appeal, the question which arose for G
consideration was whether the gift deed dated
26.04.1952 irrevocably vested all rights in the immovable
property in 'B', and thus, the sale of the gifted property
by 'B' to appellant on 02.05.1978, was legal and valid;
and consequently, the claim of the respondents to the H
1098 SUPREME COURT REPORTS [2014] 13 S.C.R.
A gifted property, on the demise of '8' on 17.02.1989, was
not sustainable in law.
Allowing the appeal, the Court
HELD:1.1. The parameters for gifts (under
Mohammedan Law) are clear and well defined. Under
8
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. [Para 11][1109-G; 1110-C-D]
C 1.2. 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
0
permissible, ifthe 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).
[Para 14][1115-E-H]
E 1.3. 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. [Para 15]
[1116-A-C]
F Nawazish Ali Khan v. Ali Raza Khan, AIR 1948
PC 134 - referred to.
Asaf .A.Fyzee Outlines of Muhammadan Law",
(fifth edition, edited and revised by Tahir
Mahmood, Oxford University Press); "Mu/la's
G Principles of Mahomedan Law" (nineteenth
edition, by M.Hidayatullah and Arshad
Hidayatullah) and "Digest of Moohummudan
Law", by Neil B.E. Baillie (part first, second
edition, London: Smith, Elder & Co., 1875) -
H referred to.
V. SREERAMACHANDRAAVADHANI (D) BY LRS. v. 1099
SHAIKABDUL RAHIM
2. The transfer of the corpus refers to a change in A
ownership, while the transfer of usufruct refers to a
change in the right of its use/enjoyment etc. On facts,
the text of the gift deed dated 26.04.1952 contemplates
the transfer of the corpus and not the usufruct. Reasons
for the above conclusion, are as under: Firstly, the donor B
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 c
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 'B' 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 o
you forthwith, From now onwards you shall enjoy This
immovable property freely ..... " The words extracted
hereinabove clearly establish the transfer of the corpus,
which was in the absolute ownership of the donor, to
the donee. Secondly, the use of the words "We shall E
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 F
property either against you or against your
successors", recognises the rights of the donee as well
as her successors. These words extinguish, not only
the donor's rights in the property, but also that of his
successors. There is recognition of the rights of the G
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 H
1100 SUPREME COURT REPORTS [2014] 13 S.C.R.
A 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
B 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
C transfer memos, alongwith 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
o 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 do nee
E 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
F 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 prope1 ~y.
G This also shows the intent of the donor, to transfer the
corpus of the property to the donee. Clearly, 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.
H [Para 16][1116-D-E; 1117-F-H; 1118-A-H; 1119-A-D]
V. SREERAMACHANDRAAVADHANI (D) BYLRS. v. 1101
SHAIKABDUL RAHIM
3. Since the donor 'S' through the gift deed dated A
26.04.1952, had transferred the corpus of the immovable
property to his wife 'B', it is natural to conclude that the
gift deed executed in favour of 'B', was valid. Likewise,
all conditions depicted in the gift deed dated
26.04.1952, which curtail use or disposal of the property B
gifted are to be treated as void. In the above view of the
matter, the conditions depicted in the gift deed, that the
donee would not have any right to gift or sell the
gifted property, or that the donee would be precluded
from alienating the gifted immovable property during c
her life time, are void. Similarly, the depiction in the gift
deed, that the gifted immovable property after the
demise of the do nee, 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 D
successors, would likewise be void. [Para 17]
[1119-D-H; 1120-A]
4. Since the gift deed dated 26.04.1952 irrevocably
vested all rights in the immovable property in 'B', it is
clear that the sale of the gifted immovable property by E
'B' to appellant on 02.05.1978, was legal and valid.
Consequently, th~ claim of the respondents to the gifted
property, on the demise of 'B' on 17 .02.1989, is not
sustainable in law. The order passed by the trial court is
affirmed. [Para 18][1120-A-C] F
CASE LAW REFERENCE
AIR 1948 PC 134 referred to Para 6
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2364 of 2005.
G
From the judgment and order dated 02.08.2004 in
Second Appeal No. 313 of 2004 passed by the High Court of
Judicature, Andhra Pradesh at Hyderabad.
G. Ramakrishna Prasad and Venkat Subramonian, Advs.
'for the Appellants. H
1102 SUPREME COURT REPORTS (2014] 13 S.C.R.
A A. Subba Rao, Sudipto Sircar (For Annam D. N. Rao),
Venlateswara Rao Anumolu and Prabhakar Parnam,
Advocates, for the Respondents.
The Judgment of the Court was delivered by
B JAGDISH SINGH KHEHAR, J.
1. Heard learned counsel for the parties.
2. Sheikh Hussein was married to Banu Bibi. During the
subsistence of his matrimonial ties, Sheikh Hussein executed
a gift deed on 26.04.1952, whereby a "tiled house" with open
C space in Survey No.883 in Eluru town, West Godavari District,
Andhra Pradesh was gifted in favour of his wife Banu Bibi.
3. It is not a matter of dispute, that Banu Bibi enjoyed the
immovable property gifted to her, during the lifetime of her
D husband Sheikh Hussein. Sheikh Hussein died in 1966. Even
after the demise of Sheikh Hussein, Banu Bibi continued to
exclusively enjoy the said immovable property. On 02.05.1978,
Banu Bibi sold the gifted immovable property, to
V.Sreeramachandra Avadhani. The vendee V.
E Sreeramachandra Avadhani is the appellant before this Court
(through his legal representatives).
4. Banu Bibi died on 17.02.1989. On her demise, the
respondents before this Court- ShailAbdul Rahim and Shaik
Abdul Gaffoor issued a legal notice to the vendee. Through
F the legal notice, they staked a claim on the abovementioned
gifted immovable property. In the notice, the respondents
asserted, firstly, that Banu Bibi had only a life interest in the
gifted immovable property; and secondly, the respondents
being the legal representatives of Sheikh Hussein (who had ·
G 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.
H
V. SREERAMACHANDRAAVADHANI (D) BY LRS. v. 1103
SHAIK ABDUL RAHIM [JAGDISH SINGH KHEHAR, J.]
5. Having realized that the vendee would not part with A
the immovable property purchased by him from Banu Bibi, the
respondents preferred a suit bearing O.S.No.256 of 1989,
before the Subordinate Judge, Eluru, West Godavari District,
Andhra Pradesh. In the suit, the respondents sought a
declaration of title, over the "tiled house" with open space, gifted B
by Sheikh Hussein to his wife Banu Bibi. In addition, the
respondehts sought recovery of possession, and also mesne
profits, from the vendee V. SreeramachandraAvadhani. The
above Original Suit filed on 13.11.1989 was contested. A
written statement was filed on 19.07 .1990. C
6. The Principal Senior Civil Judge, Eluru, West Godavari
District, Andhra Pradesh dismissed the original suit on
19.08.1998. "Relying on the judgment rendered by the Privy
Council in NawazishAli Khan v.Ali Raza Khan, AIR 1948 PC
134, the trial court arrived at the conclusion, that the gift deed D
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 E
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 righUinterest
in the gifted property, were void. The trial c,ourt clearly F
expressed, that the gift deed.dated 26.04.1952, was not in
the nature of a usufruct.
7. Dissatisfied with the order passed by the trial court,'
the respondents preferred an appeal before the Second
Additional District Judge, Eluru, West Godavari District, Andhra G
Pradesh. The First Appellate Court accepted the appeal
preferred by the respondents on 05.01.2004. On the issue
whether Ba nu 'Bibi had an ab.solute right over the "tiled house"
with open space, gifted to her, the First Appellate Court . H
1104 SUPREME COURT REPORTS [2014] 13 S.C.R.
A 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
B Shaik Hussain Saheb, as his wife has no rightto alienate
the property Exs. A-1 and 8-5 which is one and the
same document is the crucial documentto determine
the main issue in this suit. A perusal of the said document
clearly shows the fact that in the
c said settlement deed dated 26-4-1952 which was
executed by Shaik Hussain Sahab in favour of his wife
Bhanubibi he has specifically mentioned that, she has
no right to alienate the property and she can enjoy the
property as she likes and after her death it would devolved
D 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
E
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
F
gift, sale etc."
This recital itself shows that, Bhanubibi has no
right to alienate the plaint schedule property and she
has right to enjoy the same throughout her life only
G and after her death, it would devolve upon her
children if she got children and in the absence of children,
it would revert back to her husband Shaik Hussain Saheb
and Bhanubibi has no children. Further admittedly
Shaik Hussain Saheb died earlier to. Bhanubibi.
H Further admittedly the plaintiffs are the legal heirs of
...
V. SREERAMACHANDRAAVADHANI (D) BY LRS. v. 1105
SHAIKABDUL RAHIM [JAGDISH SINGH KHEHAR, J.]
Shaik Hussain Saheb. As per the above settlement A
deed, the plaintiffs are the rightful owners of the
plaint schedule property. Further though it is
contended by the defendant that for some other
property Shaik Hussain Saheb executed a will and the
plaintiffs filed a suit which was dismissed_, the said B
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 151 defendant has
not filed any document of the said to confirm his right.
Hence this Court holds that. the plaintiffs are the c
absolute owners of the property and they are entitled
for declaration of the suit schedule property. Hence
•
this issue is decided in favour of the plaintiffs and
against the defendants."
(emphasis is ours) D
A perusal of the judgment rendered by the First
Appellate Court reveals, that the appeal was adjudicated, as
if the controversy was in the nature of a disputed question of
fact, without appreciating the legal implications pertaining to E
gift, under Muhammedan Law. While determining the
controversy, the FirstAppellate 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 F
upon by the trial court, while interpreting the text of the gift deed
dated 26. 04.1952, arrived at the conclusion, that Ba nu Bibi
had merely been transferred a life interest in the "tiled house"
with open space, gifted to her on 26. 04.1952.
. 8. Dissatisfied with the judgment rendered by the First G
Appellate Court, the vendee V.Sreeramachandra Avadhani
preferred an appeal before the High Court of Judicature of
Andhra Pradesh, at Hyderabad (hereinafter referred to as the
'High Court'). The High Court while disposing of the Second
Appeal No.313 of 2004 on 02.08.2004 affirmed the H
1106 SUPREME COURT REPORTS [2014] 13 S.C.R.
A 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
hE:reunder: ·
"Considering the submissions made and also
B on perusal of the material, the question which falls for
consideration in this appeal is, as to whether Bhanubibi
is wife of Shaik Hussain Saheb, who was admittedly
the owner of the properties, and had any alienable
rights in terms of the settlement deed executed on
c her favour on 26-04-1952 and consequently the sale
in favour of the appellant is valid. Necessarily.
these questions call foe. the consideration of the terms
and conditions of the settlement deed and
interpretation thereof, which no doubt is a factual
D 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
E heirs, it as 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
F approach made by the lower Appellate Court in
considering the terms of the said settlement deed."
(emphasis is ours)
A perusal of the consideration recorded by the High Court
G reveals, that the High Co1,.1rt also did not, examine the nature
and ·effect of tlie 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
H Nawazish Ali Khan's case (supra)(which was relied upon by
V. SREERAMACHANDRAAVADHANI (D) BY LRS. v. 1107
SHAIKABDUL RAHIM [JAGDISH SINGH KHEHAR, J.]
the trial court). The controversy was again disposed of, on the A
basis of a literal interpretation of the terms and conditions
expressed in the gift deed (dated 26.04.1952).
9. Having lost before the First Appellate Court, as also,
before the High Court, the legal representatives of the vendee
approached this Court by filing Special Leave to Appeal (Civil) B
No.22023 of 2004. Leave was granted by this Court on
01.04.2005.
10. We have heard learned counsel representing the rival
parties. During the course of hearing, learned counsel for the c
appellants placed reliance, on the different aspects of
Muhammadan Law on the subject of gifts (hiba). In this behalf
reference was first of all placed on "Asaf A.A.Fyzee Outlines
of Muhammadan Law", (fifth edition, edited and revised by
Tahir Mahmood, Oxford University Press). On the subject of D
"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 ownershiQ in E
the substance or cor12us of a thing is transferred to a
donee; hence where a hiba is 12ur12orted to be made with
conditions or restrictions annexed as to its use or
· dis12osal, the conditions and restrictions are void ang the
hiba is valid. The Fatawa Aamgiri says: F
All 'our' masters are agreed that wh.en one has
made a gift and stiQulated 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
G
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
H
1108 SUPREME COURT REPORTS [2014] 13 S.C.R.
A the donee and his heirs, generation after generation,
declaring that if· the do nee 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 lthnaAshari Law.
B (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
c to Bon 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
D of gift lays down the condition that B shall not transfer
the property. The restraint against alienation is void
and B takes the property absolutely."
(emphasis is ours)
E 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
F 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
toili.§1.
"All our masters are agreed that when one has
G made a gift and stipulated for~ condition that is fas id 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
H donee took an absolute interest. But in Amjad Khan's
V. SREERAMACHANDRAAVADHANI (D) BY LRS. v. 1109
SHAIKABDUL RAHIM [JAGDISH SINGH KHEHAR, J.]
case (1929) 56 l.A.213, 4 Luck.305 the Judicial A
Committee did not regard the principle as applicable
to the facts. See sec.55 and the cases there cited.
"An amree (life grant) is nothing but a gift and a
condition; and the condition is invalid; but the gift is not
rendered nullby involving an invalid condition". Hedaya, B
489. In a later case the Privy Council (NawazishAli Khan
v. Ali Raza Khan (1948) 75 1.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 C
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
thedonee, o
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 Mahornedan Law, a life interest with such a condition
is nothing but a gift with a repugnant condition, when E
the condition must fail and the gift must prevail as an
absolute one, is no longer good law in view of later
decisions of the Privy Council."
(emphasis is ours)
It would be pertinent to mention, that our attention was F
not invited to any contrary legal view, expressed either by the
Privy Council, or by any other Court.
11. Learned counsel for the appellants also placed
reliance on a "Digest of Moohummudan Law", by Neil G
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, tum/eek (already described),
and iskat, which means literally, 'to cause to fall', or H
1110 SUPREME COURT REPORTS [2014] 13 S.C.R.
A extinguish. The legal effects of gift are-1 51 • That it
~stablishes a right of property in the donee, without being
9bligatorv on the donor; so that the gift may be validly
[esumed or cancelled. 2 ill!.. That it cannot be made
subject to a condition; though if a gift were made with an
B option to the donee for three days, and were accepted
before the separation of the parties. it would be
valid. And 3rd That it is not cancelled by vitiating
conditions; so that if one should give his slave on
condition of his being emancipated, the gift would be
C valid, and the condition void."
(emphasis is ours)
-
A perusal of the above text inter alia reveals, that under
Muhammadan Law, a gift has to be unconditional. Therefore,
0 conditions expressed in a gift, are to be treated as void. A
conditional gift is valid, but the conditions are void.
12. Learned counsel for the appellants then invited our
attention to another part of the "Digest of Moohummudan Law"
by Neil B.E.Baillie, dealing with "of the effect of a condition in
E 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
F 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
G 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
H
· V. SREERAMACHANDRAAVADHANI (D) BY LRS. v. 1111
SHAIKABDUL RAHIM [JAGDISH SINGH KHEHAR, J.]
thousand is thine,' or 'thou art free from it,' or 'When thou A
hast paid one-half the property then thou art free from
tlie 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 B
my releasing thee,' ar:id 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, C
or invalid, the gift is valid and the condition void; as if
one should given another a female slave, and stipulate
'that he shall not sell her,' or 'shall make her an com-
i-wulud,' or 'shall sell her to such an one,' or 'restore
her to the giver after a month,' the gift would be valid, D
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 E
all contracts which require seisin, such as gift and pledge,
that they are not invalidated by vitiating conditions."
(emphasis is ours)
The above text also leads to the same inferences as have F
been drawn above.
13. Having placed reliance on different commentaries
noticed above, learned counsel for the appellants invited our
attention to the decision rendered by the Privy Council in
Nawazish Ali Khan's case (supra). It was the vehement G
contention of the learned counsel for the appellants, that the
texts brought to our notice by him, were expressly approved,
in the above judgment. Learned counsel placed reliance on
the following observations, from the decision of the Privy
Council in Nawazish Ali Khan's case (supra): _ H
1112 SUPREME COURT REPORTS [2014] 13 S.C.R.
A "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
B 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
c English law, but wholly alien to Muslim law. In general,
Muslim law draws no distinction be-tween real and
personal property, and their Lordships know of no
authoritative work on Mus-lim law, whether the Hedaya
o"r Baillie or more modern works, and no decision of this
o 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
E recognise and insist upon. is the distinction between the
corpus of the property itself (ayn) and the usufruct in the
property (manafi). Over the corpus of property the law
recognises only ab-solute dominion. heritable and
unrestricted in point of time; andwhere a gift of the corpus
F seeks to impose a condition inconsistent with such
absolute dominion the condition is re-jected as
repugnant: but interests limited in point of time can be
created in the usufruct of the property and the dominion
over the corpus takes effect subject to any such limited
G 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
H during life .. it is consequently so after death; and al~o,
V. SREERAMACHANDRAAVADHANI (D) BY LRS. v. 1113
SHAIKABDUL RAHIM [JAGDISH SINGH KHEHAR, J.]
because men have occasion to make bequests of this A
nature as well as bequests of actual property. So
likewise, if a person bequeath the wages of his
slave, or the rent of his house, for a definite or indefinite
term, it is valid, for the same reason. In both cases,
moreover, it is necessary to consign over the house B
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 oft.he house daring the term prescribed, and
afterwards restore it to the heirs." (Hedaya, Vol.4", c
p.527. chap.5, entitled "Of Usufructuary Will.")
This distinction runs all through the Muslim law of
gifts-gifts of the corpus (tiiba), 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 D
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, E
to describe much the same things, the two systems of
law are based on quite different conceptions of
ownerships. English law recognises ownership of land
limited in duration; Muslim law admits only ownership
unlimited in duration. but recognises interests of limited F
duration in the use of property.
20 There is a full discussion of the law on this subject
in the judgment, of Sir Wazir Hasan in the case of
Amjad Khan v. Ashraf Khan.4 That case challenged G
the doctrine accepted by Hanafi lawyers that a gift to
"A" for life conferred an absoiute interest on "A"; a
doctrin~ based on a saying of the Prophet (Hedaya, Bk.
Ill, p. 309) :
H
1114 SUPREME COURT REPORTS [2014]13 S.C.R.
A "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
B condition and the condition is invalid; but a gift is not
rendered null by involving an invalid condition."
~)ir Wazir Hasan in his judgment examined the
£1ppropriate tests and all the relevant decisions of the
.privy Council. He pointed out the distinction in Muslim ·
c Law between the corpus and the usufruct, between the
thing itself and the use of the thing. On the construction
of the deed which was in question in the case before
him, he came to the conclusion that the donor intended
to confer upon his wife not the corpus, but a life interest
D only, that such life interest could take effect as a gift of
the use of the property and not as part of the property
itself, and that there was nothing in Muslim law which
compelled him to hold that the intended gift of a life estate
conferred an absolute interest on the. donee. This
E c:ase was taken in appeal to the Privy Council and is
reported in 56 IA213.5 The Board agreed with SirWazir
Hasan on the construction of the deed in question that
only a life interest was intended, and held that if the
wife took only a life interest it came to an end on her
F 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
G edition of Tyabji's Muhammadan Law at pp. 487 et
seq: That book as the work of an author still living,
cannot be cited as an authority, but their Lordships have ·
derived assistance from the discussion.
V. SREERAMACHANDRAAVADHANI (D) BY LRS. v. 1115
SHAIKABDUL RAHIM [JAGDISH SINGH KHEHAR, J.]
21 Limited interests have long been recognised under A
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 8
part of-the donee. (Bail: 11226). See also 32 Born 1726
at p. 179. Their Lordships think that there is no
difference between the several Schools of Muslim
law in their fundamental conception of property and
ownership. Alimited interest takes effect out of the c
usufruct under any "of the schools. Their Lordships
feel no doubt that in dealing with a gift under Muslim
law, the first duty of the Court is to construe the gift. If it
is a gift of the corpus, then any condition which derogates
from absolute dominion over the subject of the gift o
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 E
interest."
(emphasis is ours)
14. The above extracts from the observations recorded
by the Privy Council, leave no room for any doubt, thatthe F
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 giffof the corpus are impermissible. G
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 oftime·(as an interest, restricted to the life of the
donee).
H
1116 SUPREME COURT REPORTS [2014] 13 S.C.R.
A 15. Having given our thoughtful consideration to the trea-
tises on Muhammedan Law brought to our notice, as also, the
judgment rendered by the Privy Council in Nawazish Ali Khan's
case (supra), we are of the considered view, that in a gift which
contemplates the transfer of the corpus, there is no question
B of such transfer being conditional. The transfer is absolute.
Conditions imposed in a gift of the corpus, are void. For the
determination of the present controversy, the only issue to be
considered by us is, whether the gift made by Sheikh Hussein
in favour of Banu Bibi dated 26.04.1952 contem-plates the
c 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. Thetransferofthecorpus refers to a change in owner-.
D 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
E reproduced hereunder:
"This deed of conveyance of immovable property,
i.e. tiled house with open place worth of Rs.3000.00 ·
xxxxxxx
F 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 liruvallur Veera Raghavulu and
got the same registered as document No.2462/44 and
G 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
H
V. SREERAMACHANDRAAVADHANI (D) BY LRS. v. 1117
SHAIKABDUL RAHIM [JAGDISH SINGH KHEHAR, J.]
to you forthwith, From now onwards you shall enjoy A
This immovable property freely witho.ut 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 B
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 C
children the same shall return back to me or to my
near successors with absolute rights of enjoyment and
dispossession by way of gift, Sale etc. I am herewith
· filing transfer memos along with this deed for registration
to get your name mutated in revenue records. Therefore o
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 orwith my
successors after your life time." E
Having given our thoughtful consideration to the text of
0
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:
F
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 as-serted, thatthere is no dispute about the title of the G
donor, over the gifted property. All the above rights in the 'donor,
are sought to be transferred by way of gift tq, 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
H
1118 SUPREME COURT REPORTS [2014J 13 S.C.R.
A immovable property freely ..... " The words extracted
herein above clearly establish the transfer of the corpus, which
was in the absolute ownership of the donor, to the do nee.
Secondly, the use of the words "We shall have no rig.ht to
cancel this conveyance with silly reasons" also reveals, the
8 intention of the donor to transfer the corpus of the property, to
thedonee.
Thirdly, the use of the words "Neither myself nor my
succes-sors shall raise any objection in respect of this
c conveyed property either against you or against your
successors", recognises the rights of the donee as well as her
successors. These words extinguish, not only the donor's rights
in the property, but also that of his successors. There is
recognition of the rights of the donee and her successo~s to
0 the extent, that in the event of transfer of the gifted property to
the successors ofthe 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.
f ourthlVi the gift deed records that" ..... after your life time
E 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
F children of the donor. This too shows that-the intention of the
donor, contemplated the transfer of the corpus.
· E.ifthly, 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
G 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
H
V. SREERAMACHANDRAAVADHANI (0) BY LRS. v. 1119
SHAIKABDUL RAHIM [JAGDISH SINGH KHEHAR, J.]
in the gift deed, that Municipal Taxes will be borne by the donee, A
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 t~e
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" B
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 C
shows the intent of the donor, to trans-fer the corpus of the
property to the do nee.
For the reasons recorded hereinabove, there can be no
doubt whatsoever, that the intention of the donor in the gift .deed 0
. dated 26.01.1952, was to tn;msferthe corpus of the immovable
property to the donee, and not merely a usufruct therein.
17. Having concluded that the donor Sheikh Hussein
through the gift deed dated 26.04.1952, had transferred the
corpus of the immovable property to his wife Banu Bibi, it is E
natural to conclude that the gift deed executed in favour of Banu
Bibi, was valid. Likewise, while applying· the principles of
Munammedan Law expressed in recognized texts, and the
decision of the Privy Council in Nawazish Ali Khan's case
(supra) it is inevitable to hold, that all conditions depicted in F
the gift deed dated 26.04.1952, which curtail use or disposal
of the property gifted are to be treated as void. In the above
view of the matter, the conditions depicted in the gift deed,
that the do nee would not have any right to gift or sell the gifted
property, or that the donee would be precluded from alienating G
the gifted immovable property during her life time, are void.
Similarly, the depiction in the gift deed, that the gifted im-
movable property afterthe demise of the donee, would devolve·
upon her off spring and in the event of her not bearing any
H
1120 SUPREME COURT REPORTS [2014] 13 S.C.R.
A children, the same would return back to the donor or to his
successors, would likewise be void.
18. Having held that the gift deed dated 26.04.1952
irr~vocably vested all rights in the immovable property in Ba nu
Bibi, it is natural for us to conclude, that'the sale of the gifted
B immovable property by Banu Bibi to V.Sreeramachandra
Avadhani on 02.05.1978, was legal and valid:Consequently,
the claim of the respondents to the gifted property, on the
demise of Banu Bibi on 17.02.1989, is not sustainable in law.
c appeal19.isFor the reasons recorded herein above, the instant
allowed. The order passed by,the trial co.urt dated
19.08.1998 is affirmed. The orders passed by the First
Appellate Court dated 05.01.2004, and by the High Court
dated 02.08.2004, are set aside.
D ,20. There shall be no order as to costs.
Bibhuti Bhushan Bo.se Appeal allowed.
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