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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.2364 OF 2005

V. SREERAMACHANDRA AVADHANI (D) BY L.RS. .......APPELLANTS

VERSUS

SHAIK ABDUL RAHIM & ANR. ......RESPONDENTS

J U D G M E N T

Jagdish Singh Khehar, J.

1.Heard learned counsel for the parties.

2.Sheikh Hussein was married to Banu Bibi. During the

subsistence of his matrimonial ties, Sheikh Hussein executed a

gift deed on 26.04.1952, whereby a “tiled house” with open

space in Survey No.883 in Eluru town, West Godavari District,

Andhra Pradesh was gifted in favour of his wife Banu Bibi.

3.It is not a matter of dispute, that Banu Bibi enjoyed the

immovable property gifted to her, during the lifetime of her

husband Sheikh Hussein. Sheikh Hussein died in 1966. Even

after the demise of Sheikh Hussein, Banu Bibi continued to

exclusively enjoy the said immovable property. On 02.05.1978,

Banu Bibi sold the gifted immovable property, to

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V.Sreeramachandra Avadhani. The vendee V.Sreeramachandra

Avadhani is the appellant before this Court (through his legal

representatives).

4.Banu Bibi died on 17.02.1989. On her demise, the

respondents before this Court - Shail Abdul Rahim and Shaik

Abdul Gaffoor issued a legal notice to the vendee. Through

the legal notice, they staked a claim on the abovementioned

gifted immovable property. In the notice, the respondents

asserted, firstly, that Banu Bibi had only a life interest in

the gifted immovable property; and secondly, the respondents

being the legal representatives of Sheikh Hussein (who had

gifted the immovable property to Banu Bibi) came to be vested

with the right and title over the gifted immovable property,

after the demise of Banu Bibi. The vendee, V.Sreeramachandra

Avadhani repudiated the assertions made in the legal notice

dated 22.03.1989, through his response dated 16.04.1989.

5.Having realized that the vendee would not part with the

immovable property purchased by him from Banu Bibi, the

respondents preferred a suit bearing O.S.No.256 of 1989,

before the Subordinate Judge, Eluru, West Godavari District,

Andhra Pradesh. In the suit, the respondents sought a

declaration of title, over the “tiled house” with open space,

gifted by Sheikh Hussein to his wife Banu Bibi. In addition,

the respondents sought recovery of possession, and also mesne

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profits, from the vendee V.Sreeramachandra Avadhani.

The above Original Suit filed on 13.11.1989 was contested.

A written statement was filed on 19.07.1990.

6.The Principal Senior Civil Judge, Eluru, West Godavari

District, Andhra Pradesh dismissed the original suit on

19.08.1998. Relying on the judgment rendered by the Privy

Council in Nawazish Ali Khan v. Ali Raza Khan, AIR 1948 PC

134, the trial court arrived at the conclusion, that the gift

deed executed by Sheikh Hussein on 26.04.1952 transferring

immovable property in favour of his wife Banu Bibi, was valid.

It was also concluded, that the gifted immovable property came

to be irrevocably vested in the donee Banu Bibi. That apart,

the trial court held, that Sheikh Hussein had gifted the

corpus of the immovable property to his wife Banu Bibi. Based

on the aforesaid, it was further concluded, that all the

conditions expressed by the donor Sheikh Hussein, in the gift

deed dated 26.04.1952, depriving the donee of an absolute

right/interest in the gifted property, were void. The trial

court clearly expressed, that the gift deed dated 26.04.1952,

was not in the nature of a usufruct.

7.Dissatisfied with the order passed by the trial court,

the respondents preferred an appeal before the Second

Additional District Judge, Eluru, West Godavari District,

Andhra Pradesh. The First Appellate Court accepted the appeal

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preferred by the respondents on 05.01.2004. On the issue

whether Banu Bibi had an absolute right over the “tiled house”

with open space, gifted to her, the First Appellate Court

recorded its finding on the basis of the text of the gift

deed, dated 26.04.1952. The consideration recorded by the

First Appellate Court is being extracted hereunder:

“13.It is the bounden duty of the plaintiffs to

prove that, they have inherited the property as the

legal heirs of Shaik Hussain Saheb, as his wife has no

right to alienate the property Exs. A-1 and B-5 which

is one and the same document is the crucial document

to determine the main issue in this suit. A perusal of

the said document clearly shows the fact that in the

said settlement deed dated 26-4-1952 which was

executed by Shaik Hussain Sahab in favour of his wife

Bhanubibi he has specifically mentioned that, she has

no right to alienate the property and she can enjoy

the property as she likes and after her death it would

devolved upon her children if she has got children and

if she has not children, the heirs of Shaik Hussain

Saheb would inherit the same. It is clearly mentioned

in the said documents as follows:

“During your life time you shall

not alienate this property in favour of

any body and after your life time this

property shall devolve upon your off

spring and if you have no children the

same shall return back to me or to my

near successors with absolute rights of

enjoyment and dispossession by way of

gift, sale etc.”

This recital itself shows that, Bhanubibi

has no right to alienate the plaint schedule

property and she has right to enjoy the same

throughout her life only and after her death, it

would devolve upon her children if she got

children and in the absence of children, it would

revert back to her husband Shaik Hussain Saheb and

Bhanubibi has no children. Further admittedly

Shaik Hussain Saheb died earlier to Bhanubibi.

Further admittedly the plaintiffs are the legal

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heirs of Shaik Hussain Saheb. As per the above

settlement deed, the plaintiffs are the rightful

owners of the plaint schedule property. Further

though it is contended by the defendant that for

some other property Shaik Hussain Saheb executed a

will and the plaintiffs filed a suit which was

dismissed, the said facts are not applicable to

the facts of this case and the cause of action and

the property involved are different in the suit

and further the 1

st

defendant has not filed any

document of the said to confirm his right. Hence

this Court holds that, the plaintiffs are the

absolute owners of the property and they are

entitled for declaration of the suit schedule

property. Hence this issue is decided in favour

of the plaintiffs and against the defendants .”

(emphasis is ours)

A perusal of the judgment rendered by the First Appellate

Court reveals, that the appeal was adjudicated, as if the

controversy was in the nature of a disputed question of fact,

without appreciating the legal implications pertaining to

gift, under Muhammedan Law. While determining the

controversy, the First Appellate Court did not examine whether

the gift dated 26.04.1952, constituted transfer of the corpus

of the property, or merely its usufruct. The First Appellate

Court, without any reference to the judgment of the Privy

Council relied upon by the trial court, while interpreting the

text of the gift deed dated 26.04.1952, arrived at the

conclusion, that Banu Bibi had merely been transferred a life

interest in the “tiled house” with open space, gifted to her

on 26.04.1952.

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8.Dissatisfied with the judgment rendered by the First

Appellate Court, the vendee V.Sreeramachandra Avadhani

preferred an appeal before the High Court of Judicature of

Andhra Pradesh, at Hyderabad (hereinafter referred to as the

`High Court’). The High Court while disposing of the Second

Appeal No.313 of 2004 on 02.08.2004 affirmed the determination

recorded by the First Appellate Court. The operative part of

the order of the High Court, on the nature and effect of the

gift deed dated 26.04.1952, is being extracted hereunder:

“Considering the submissions made and also on

perusal of the material, the question which falls for

consideration in this appeal is, as to whether

Bhanubibi is wife of Shaik Hussain Saheb, who was

admittedly the owner of the properties, and had any

alienable rights in terms of the settlement deed

executed on her favour on 26-04-1952 and consequently

the sale in favour of the appellant is valid.

Necessarily, these questions call for the consideration

of the terms and conditions of the settlement deed and

interpretation thereof, which no doubt is a factual

matrix. There cannot be any dispute in regard to the

terms as contained in the said settlement deed. The

lower Appellate Court did taken into consideration the

restriction imposed on her and being they having no

children of themselves and the plaintiffs being the only

heirs, it was held that there could not have been sale

in favour of the appellant. Having regard to the terms

as contained therein and which has rightly taken into

consideration by the lower Appellate Court, I do not

find any illegality or perversity in regard to the

approach made by the lower Appellate Court in

considering the terms of the said settlement deed.”

(emphasis is ours)

A perusal of the consideration recorded by the High Court

reveals, that the High Court also did not examine the nature

and effect of the gift. It did not take into consideration,

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whether the gift was in respect of the corpus of the immovable

property, or its usufruct. The High Court also did not take

into consideration, the judgment rendered by the Privy Council

in Nawazish Ali Khan's case (supra)(which was relied upon by

the trial court). The controversy was again disposed of, on

the basis of a literal interpretation of the terms and

conditions expressed in the gift deed (dated 26.04.1952).

9.Having lost before the First Appellate Court, as also,

before the High Court, the legal representatives of the vendee

approached this Court by filing Special Leave to Appeal

(Civil) No.22023 of 2004. Leave was granted by this Court on

01.04.2005.

10.We have heard learned counsel representing the rival

parties.During the course of hearing, learned counsel for the

appellants placed reliance, on the different aspects of

Muhammadan Law on the subject of gifts (hiba). In this behalf

reference was first of all placed on “Asaf A.A.Fyzee Outlines

of Muhammadan Law”, (fifth edition, edited and revised by

Tahir Mahmood, Oxford University Press). On the subject of

“conditional gifts”, the fundamentals/principles of Muhammadan

Law as have been explained in the treatise are extracted

hereunder:

“Gifts with conditions

In hiba the immediate and absolute

ownership in the substance or corpus of a thing is

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transferred to a donee; hence where a hiba is

purported to be made with conditions or

restrictions annexed as to its use or disposal,

the conditions and restrictions are void and the

hiba is valid . The Fatawa Aamgiri says:

All ‘our’ masters are agreed that when one

has made a gift and stipulated for a condition

that is fasid or invalid, the gift is valid and

the condition void. It is a general rule with

regard to all contracts which require seisin, such

as gift and pledge, that they are not invalidated

by vitiating conditions.

Examples:-

(i)D makes a hiba of a house for the

residence of the donee and his heirs,

generation after generation, declaring

that if the donee sells or mortgages it

the donor or his heirs will have a claim

on the house but not otherwise. The donee

takes an absolute estate both in Hanafi

and in Ithna Ashari Law.

(ii)D makes a hiba on condition that he

has an option of cancelling the hiba

within three days. The hiba is valid and

the option void.

(iii) A makes a gift of government

promissory notes to B on condition that B

should return one-fourth part of the

notes to A after a month. The condition

relates to a return of part of the

corpus. The condition is void and the

gift is valid.

(iv)A makes a hiba of certain property

to B. The deed of gift lays down the

condition that B shall not transfer the

property. The restraint against

alienation is void and B takes the

property absolutely.”

(emphasis is ours)

Reliance was also placed on “Mulla's Principles of Mahomedan

Law” (nineteenth edition, by M.Hidayatullah and Arshad

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Hidayatullah) and our attention was drawn to the following

narration:

“Gift with a condition.- When a gift is

made subject to a condition which derogates

from the completeness of the grant, the

condition is void, and the gift will take

effect as if no conditions were attached to

it(s).

“All our masters are agreed that when one

has made a gift and stipulated for a condition

that is fasid or invalid, the gift is valid and

the condition is void”.

Gift of a life-estate.-Life estates were

considered to come under this principle with

the result that the donee took an absolute

interest. But in Amjad Khan's case (1929) 56

I.A.213, 4 Luck.305 the Judicial Committee did

not regard the principle as applicable to the

facts. See sec.55 and the cases there cited.

“An amree (life grant) is nothing but a gift

and a condition; and the condition is invalid;

but the gift is not rendered null by involving

an invalid condition”. Hedaya, 489. In a

later case the Privy Council (Nawazish Ali Khan

v. Ali Raza Khan (1948) 75 I.A.62, (48)

A.PC.134) observed that there was no such thing

as life estate or vested remainder in Mahomedan

Law as understood in English Law, but a gift

for life would be construed as an interest for

life in the usufruct.

`Life estate’ in the sense, that is, the

transfer of the ownership of the property

itself limited to the life of the donee, with

a condition that the donee would have no right

of alienation is not recognised by Mahomedan

Law. But the view that once prevailed to the

effect, that under the Mahomedan Law, a life

interest with such a condition is nothing but a

gift with a repugnant condition, when the

condition must fail and the gift must prevail

as an absolute one, is no longer good law in

view of later decisions of the Privy Council.”

(emphasis is ours)

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It would be pertinent to mention, that our attention was not

invited to any contrary legal view, expressed either by the

Privy Council, or by any other Court.

11.Learned counsel for the appellants also placed reliance

on a “Digest of Moohummudan Law”, by Neil B.E.Baillie (part

first, second edition, London: Smith, Elder & Co., 1875). The

relevant extract of the text relied upon is being reproduced

hereunder:

“Gift is of two kinds, tumleek (already

described), and iskat, which means literally,

`to cause to fall’, or extinguish. The legal

effects of gift are-1

st

. That it establishes a

right of property in the donee, without being

obligatory on the donor; so that the gift may

be validly resumed or cancelled. 2

nd

. That it

cannot be made subject to a condition; though

if a gift were made with an option to the donee

for three days, and were accepted before the

separation of the parties, it would be valid.

And 3

rd

That it is not cancelled by vitiating

conditions; so that if one should give his

slave on condition of his being emancipated,

the gift would be valid, and the condition

void.”

(emphasis is ours)

A perusal of the above text inter alia reveals, that under

Muhammadan Law, a gift has to be unconditional. Therefore,

conditions expressed in a gift, are to be treated as void. A

conditional gift is valid, but the conditions are void.

12.Learned counsel for the appellants then invited our

attention to another part of the “Digest of Moohummudan Law”

by Neil B.E.Baillie, dealing with “of the effect of a

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condition in the gift”. The text relied upon is being

reproduced hereunder:

“When a slave or a thing is given on a

condition that the donee shall have an option

for three days, the gift is lawful if

confirmed by him before the separation of the

parties; and if not confirmed by him till

after they have separated, it is not lawful.

But when a thing is given on a condition that

the donor shall have an option for three days,

the gift is valid, and the option void;

because gift is not a binding contract, and

therefore does not admit of the option of

stipulation. A person says to another, `I

have released thee from my right against thee,

on condition that I have an option,’ the

release is lawful, and the option void.

A man to whom a thousand dirhems are due

by another says to him, `When the morrow has

come the thousand is thine,’ or `thou art free

from it,’ or `When thou hast paid one-half the

property then thou art free from the remaining

half,’ or `the remaining half is thine,’ the

gift is void.’ But if he should say, `I have

released you on condition that you emancipate

your slave,’ or `Thou art released on

condition of thy emancipating him by my

releasing thee,’ and he should say, `I have

accepted,’ or `I have emancipated him,’ he

would be released from the debt.

All `our’ masters are agreed that when

one has made a gift and stipulated for a

condition that is fasid , or invalid, the gift

is valid and the condition void ; as if one

should given another a female slave, and

stipulate `that he shall not sell her,’ or

`shall make her an com-i-wulud,’ or `shall

sell her to such an one,’ or `restore her to

the giver after a month,’ the gift would be

valid, and all the conditions void’. Or if one

should give a mansion, or bestow it in alms,

on condition `that the donee shall restore

some part of it,’ or `give some part of it is

iwuz, or exchange,’ the gift would be lawful

and the condition void.’ It is a general rule

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with regard to all contracts which require

seisin, such as gift and pledge, that they are

not invalidated by vitiating conditions.”

(emphasis is ours)

The above text also leads to the same inferences as have been

drawn above.

13.Having placed reliance on different commentaries noticed

above, learned counsel for the appellants invited our

attention to the decision rendered by the Privy Council in

Nawazish Ali Khan’s case (supra). It was the vehement

contention of the learned counsel for the appellants, that the

texts brought to our notice by him, were expressly approved,

in the above judgment. Learned counsel placed reliance on the

following observations, from the decision of the Privy Council

in Nawazish Ali Khan's case (supra):

“19 The Chief Court in appeal took the view

that under the wills of Nasir Ali Khan the es -

tate vested after his death in the three suc -

cessive tenants for life; that on the exercise

of the power of appointment it would pass imme -

diately to the appointee; that there was no pe -

riod during which the estate would be in

abeyance; and that the rights of the heirs of

the testator were not affected or prejudiced.

In their Lordships opinion this view of the

matter introduces into Muslim law legal terms

and conceptions of ownership familiar enough in

English law, but wholly alien to Muslim law. In

general, Muslim law draws no distinction be -

tween real and personal property, and their

Lordships know of no authoritative work on Mus -

lim law, whether the Hedaya or Baillie or more

modern works, and no decision of this Board

which affirms that Muslim law recognises the

splitting up of ownership of land into estates,

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distinguished in point of quality like legal

and equitable estates, or in point of duration

like estates in fee simple, in tail, for life,

or in remainder. What Muslim law does recognise

and insist upon, is the distinction between the

corpus of the property itself (ayn) and the

usufruct in the property (manafi). Over the

corpus of property the law recognises only ab -

solute dominion, heritable and unrestricted in

point of time; and where a gift of the corpus

seeks to impose a condition inconsistent with

such absolute dominion the condition is re -

jected as repugnant; but interests limited in

point of time can be created in the usufruct of

the property and the dominion over the corpus

takes effect subject to any such limited inter -

ests.

"If a person bequeath the service of his slave,

or the use of his house, either for a definite

or an indefinite period, such bequest is valid;

because as an endowment with usufruct, either

gratuitous or for an equivalent, is valid dur -

ing life, it is consequently so after death;

and also, because men have occasion to make be -

quests of this nature as well as bequests of

actual property. So likewise, if a person be -

queath the wages of his slave, or the rent of

his house, for a definite or indefinite term,

it is valid, for the same reason. In both

cases, moreover, it is necessary to consign

over the house or the slave, to the legatee,

provided they do not exceed the third of the

property in order that he may enjoy the wages

or service of the slave, or the rent or use of

the house daring the term prescribed, and af -

terwards restore it to the heirs." (Hedaya,

Vol.4, p.527, chap.5, entitled "Of Usufructuary

Will.")

This distinction runs all through the Muslim

law of gifts-gifts of the corpus (hiba), gifts

of the usufruct (ariyat) and usufructuary be -

quests. No doubt where the use of a house is

given to a man for his life he may, not in -

aptly, be termed a tenant for life, and the

owner of the house, waiting to enjoy it until

the termination of the limited interest, may be

said, not inaccurately, to possess a vested re -

mainder. But though the same terms may be used

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in English and Muslim law, to describe much the

same things, the two systems of law are based

on quite different conceptions of ownerships.

English law recognises ownership of land lim -

ited in duration; Muslim law admits only owner -

ship unlimited in duration, but recognises in -

terests of limited duration in the use of prop -

erty.

20 There is a full discussion of the law on

this subject in the judgment, of Sir Wazir

Hasan in the case of Amjad Khan v. Ashraf

Khan.4 That case challenged the doctrine ac -

cepted by Hanafi lawyers that a gift to "A" for

life conferred an absolute interest on "A"; a

doctrine based on a saying of the Prophet (He -

daya, Bk. III, p. 309) :

"An amree or life grant is lawful to the

grantee during his life and descends to his

heirs. The meaning of amree is a gift of a

house (for example) during the life of the

donee, on condition of its being returned upon

his death. An amree is nothing but a gift and a

condition and the condition is invalid; but a

gift is not rendered null by involving an in -

valid condition."

Sir Wazir Hasan in his judgment examined the

appropriate tests and all the relevant deci -

sions of the Privy Council. He pointed out the

distinction in Muslim law between the corpus

and the usufruct, between the thing itself and

the use of the thing. On the construction of

the deed which was in question in the case be -

fore him, he came to the conclusion that the

donor intended to confer upon his wife not the

corpus, but a life interest only, that such

life interest could take effect as a gift of

the use of the property and not as part of the

property itself, and that there was nothing in

Muslim law which compelled him to hold that the

intended gift of a life estate conferred an ab -

solute interest on the donee. This case was

taken in appeal to the Privy Council and is re -

ported in 56 IA 213.5 The Board agreed with Sir

Wazir Hasan on the construction of the deed in

question that only a life interest was in -

tended, and held that if the wife took only a

life interest it came to an end on her death

and the appellant who was her heir took noth -

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ing, and if the life interest was bad the wife

took no interest at all and the appellant was

in no better case. There is also a discussion

of the basis upon which a life interest under

Hanab law can be supported in the 3rd edition

of Tyabji's Muhammadan Law at pp. 487 et seq:

That book as the work of an author still liv -

ing, cannot be cited as an authority, but their

Lordships have derived assistance from the dis -

cussion.

21 Limited interests have long been recognised

under Shia law. The object of "Habs" is "the

empowering of a person to receive the profit or

usufruct of a thing with a reservation of the

owner's right of property in it . . .I have be-

stowed on thee this mansion .,. for thy life or

my life or for a fixed period" is binding by

seizm on the part of the donee. (Bail: II 226).

See also 32 Bom 1726 at p. 179. Their Lordships

think that there is no difference between the

several Schools of Muslim law in their funda -

mental conception of property and ownership. A

limited interest takes effect out of the

usufruct under any of the schools. Their Lord -

ships feel no doubt that in dealing with a gift

under Muslim law, the first duty of the Court

is to construe the gift. If it is a gift of the

corpus, then any condition which derogates from

absolute dominion over the subject of the gift

will be rejected as repugnant; but if upon con -

struction the gift is held to be one of a lim -

ited interest the gift can take effect out of

the usufruct, leaving the ownership of the cor -

pus unaffected except to the extent to which

its enjoyment is postponed for the duration of

the limited interest. ”

(emphasis is ours)

14.The above extracts from the observations recorded by the

Privy Council, leave no room for any doubt, that the parame -

ters for gifts (under Mohammedan Law) are clear and well de -

fined. Gifts pertaining to the corpus of the property are

absolute. Where a gift of corpus seeks to impose a limit, in

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point of time (as a life interest), the condition is void.

Likewise, all other conditions, in a gift of the corpus are

impermissible. In other words, the gift of the corpus has to

be unconditional. Conditions are however permissible, if the

gift is merely of a usufruct. Therefore, the gift of a

usufruct can validly impose a limit, in point of time (as an

interest, restricted to the life of the donee).

15.Having given our thoughtful consideration to the trea -

tises on Muhammedan Law brought to our notice, as also, the

judgment rendered by the Privy Council in Nawazish Ali Khan's

case (supra), we are of the considered view, that in a gift

which contemplates the transfer of the corpus, there is no

question of such transfer being conditional. The transfer is

absolute. Conditions imposed in a gift of the corpus, are

void. For the determination of the present controversy, the

only issue to be considered by us is, whether the gift made by

Sheikh Hussein in favour of Banu Bibi dated 26.04.1952 contem -

plates the transfer of the corpus. If the answer to the above

is in the affirmative, then the will dated 26.04.1952 would be

considered as valid, but the conditions incorporated therein,

would be regarded as void.

16.The transfer of the corpus refers to a change in owner -

ship, while the transfer of usufruct refers to a change in the

right of its use/enjoyment etc. In order to determine whether

Page 17 17

the gift deed dated 26.04.1952 envisaged a transfer of the

corpus, we will have to examine the contents of the gift deed

itself. Accordingly, the gift deed dated 26.04.1952 is being

reproduced hereunder:

“This deed of conveyance of immovable

property, i.e. tiled house with open place

worth of Rs.3000.00

XXXXXXX

The tiled house together with open place

shown in the schedule below which was purchased

by me out of my earnings on 16.7.1944 from

Smt.Manikyamma, W/o Sri Arundalapalli Tiruval -

lur Veera Raghavulu and got the same registered

as document No.2462/44 and taken possession of

the same and ever since has been under my abso -

lute right, possession and enjoyment about

there are no disputes or any joint sureties

etc. I am conveying in your favour as you are

my wife and out of love to you and delivered

possession of the same to you forthwith, From

now onwards you shall enjoy This immovable

property freely without a right to gift, Sale

etc. and since you have no issue so far, you

shall enjoy the property during your life time.

Neither myself nor my successors shall raise

any objection in respect of this conveyed prop -

erty either against you or against your succes -

sors. We shall have no right to cancel this

conveyance with silly reasons. During your

life time you shall not alienate This property

in favour of any body and after your life time

this property shall devolve upon your off

spring and if you have no children the same

shall return back to me or to my near succes -

sors with absolute rights of enjoyment and dis -

possession by way of gift, Sale etc. I am

herewith filing transfer memos along with this

deed for registration to get your name mutated

in revenue records. Therefore from now onwards

you shall pay the Municipal Taxes and shall en -

joy the same freely and happily. I have handed

over the link sale deed and the voucher to you.

It is settled that the said voucher shall be

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kept with me or with my successors after your

life time.”

Having given our thoughtful consideration to the text of the

gift deed dated 26.04.1952, we are of the view that the same

contemplates the transfer of the corpus and not the usufruct.

Our reasons for the above conclusion, are as under:

Firstly, the donor records, having purchased the gifted prop -

erty from his own earning on 16.07.1944, through a registered

purchase deed, whereby he was vested with the absolute right

of possession and enjoyment of the property. It is then as -

serted, that there is no dispute about the title of the

donor, over the gifted property. All the above rights in the

donor, are sought to be transferred by way of gift to Banu

Bibi by asserting, “I am conveying in your favour as you are

my wife and out of love to you and delivered possession of the

same to you forthwith, From now onwards you shall enjoy This

immovable property freely…..” The words extracted hereinabove

clearly establish the transfer of the corpus, which was in the

absolute ownership of the donor, to the donee.

Secondly, the use of the words “We shall have no right to can -

cel this conveyance with silly reasons” also reveals, the in -

tention of the donor to transfer the corpus of the property,

to the donee.

Thirdly, the use of the words “Neither myself nor my succes -

sors shall raise any objection in respect of this conveyed

Page 19 19

property either against you or against your successors”,

recognises the rights of the donee as well as her successors.

These words extinguish, not only the donor's rights in the

property, but also that of his successors. There is recogni -

tion of the rights of the donee and her successors to the ex -

tent, that in the event of transfer of the gifted property to

the successors of the donee, the same would not be assailable

by the donor or his successors. This also depicts, the inten -

tion of the donor to transfer the corpus of the gifted

property.

Fourthly, the gift deed records that “…..after your life time

this property shall devolve upon your off spring…..”. The use

of the words “your off spring”, expresses an intention which

is separate and distinct from “our off spring”. In other

words, the gift deed contemplates the transfer of the gifted

property by the donee, to her children, even if, such children

were not the children of the donor. This too shows that the

intention of the donor, contemplated the transfer of the cor -

pus.

Fifthly, the gift deed records “I am herewith filing transfer

memos, along with this deed for registration, to get your name

mutated in revenue records. Therefore from now onwards you

shall pay the Municipal Taxes and shall enjoy the same freely

and happily.” This expression in the gift deed, brings out

the intention of the donor, that the transfer of the gifted

Page 20 20

property should not remain a matter of understanding within

the family, but should be an open declaration to the public.

The assertion in the gift deed, that Municipal Taxes will be

borne by the donee, shows that the donee was to henceforth

bear all liabilities of the gifted property, as its owner.

Lastly, the handing over of the earlier title deeds of the

gifted property to the donee, by recording in the gift deed

that “I have handed over the link sale deed and the voucher to

you” also indicates, that the donor clearly expressed in the

gift deed, that he had not retained any documents of title

pertaining to the gifted property with himself, but had handed

over the same to the donee. This also shows the intention of

the donor to relinquish all his existing rights, in the gifted

property. This also shows the intent of the donor, to trans -

fer the corpus of the property to the donee.

For the reasons recorded hereinabove, there can be no doubt

whatsoever, that the intention of the donor in the gift deed

dated 26.04.1952, was to transfer the corpus of the immovable

property to the donee, and not merely a usufruct therein.

17.Having concluded that the donor Sheikh Hussein through

the gift deed dated 26.04.1952, had transferred the corpus of

the immovable property to his wife Banu Bibi, it is natural to

conclude that the gift deed executed in favour of Banu Bibi,

was valid. Likewise, while applying the principles of

Page 21 21

Muhammedan Law expressed in recognized texts, and the decision

of the Privy Council in Nawazish Ali Khan's case (supra) it is

inevitable to hold, that all conditions depicted in the gift

deed dated 26.04.1952, which curtail use or disposal of the

property gifted are to be treated as void. In the above view

of the matter, the conditions depicted in the gift deed, that

the donee would not have any right to gift or sell the gifted

property, or that the donee would be precluded from alienating

the gifted immovable property during her life time, are void.

Similarly, the depiction in the gift deed, that the gifted im -

movable property after the demise of the donee, would devolve

upon her off spring and in the event of her not bearing any

children, the same would return back to the donor or to his

successors, would likewise be void.

18.Having held that the gift deed dated 26.04.1952 irrevoca -

bly vested all rights in the immovable property in Banu Bibi,

it is natural for us to conclude, that the sale of the gifted

immovable property by Banu Bibi to V.Sreeramachandra Avadhani

on 02.05.1978, was legal and valid. Consequently, the claim of

the respondents to the gifted property, on the demise of Banu

Bibi on 17.02.1989, is not sustainable in law.

19.For the reasons recorded hereinabove, the instant appeal

is allowed. The order passed by the trial court dated

19.08.1998 is affirmed. The orders passed by the First Appel -

Page 22 22

late Court dated 05.01.2004, and by the High Court dated

02.08.2004, are set aside.

20.There shall be no order as to costs.

...........................J.

(JAGDISH SINGH KHEHAR)

...........................J.

(ROHINTON FALI NARIMAN)

NEW DELHI;

AUGUST 21, 2014.