Hiba: Gift Under Muslim Law- Questions & Answers By Justice V Ramkumar [Part-III]

Q.10.2 What is the position if in spite of a gift of the “corpus” the donor retains dominion over the “corpus” ?

Ans. Where the donor retains possession of the “corpus” in his own right despite the gift and reserves to himself the right to enjoy the same, such a gift would be invalid. (See –

K. S. Mahomed Aslam Khan v. Khalilul Rehman Khan and Others, AIR 1947 PC 97 – Sir, John Beaumont, Lord Du Parcq, S. P. Khambatta - JJ;

Nawazish Ali Khan v. Ali Raza Khan AIR 1948 PC 134 – Sir John Beaumont, Lord Oaksey, Lord Uthwatt - JJ;

Hajee Kunju Mamathu v. Asikutty 1959 KLT 624 = 1959 KHC – S. Velu Pillai - J;

Pichakannu v. Aliyarkunju 1963 KLT 226 = 1963 KHC 54 – S. Velu Pillai - J;

Mohamad Abdul Ghani v. Fakhr Jahan Begum AIR 1922 PC 281 - V Cave, Shaw, J Edge, A Ali - JJ ;

Beepathumma and Others v. Mohamed Nakoor Meera Rowther and Others, ILR 1976 (2) Kerala 137 = AIR 1977 Kerala 54 - Bhaskaran, George Vadakkel - JJ.

Q.10.3 What is the consequence of an absolute gift given and a condition repugnant to the grant so made ?

Ans.

• Where an absolute gift of the property is given with a clause prohibiting alienation by the donee, the said clause which is repugnant to the absolute grant will be treated as void in law. (Vide Abdul Gafur v. Nizamuddin (1892) 19 Indian Appeals 170 PC = ILR 17 Bombay 1 (PC) – Lord Watson, Lord Morris, Sir Richard Couch, Lord Shand - JJ .

• Where a condition repugnant to the whole enjoyment of the gifted property is attached to the gift, the condition would be treated as bad and not the grant. (Vide Nawab Umjad Ally Khan v. Muhumdee Begum (1867) 11 MIA (Moores Indian Appeals) 517 (PC) – Sir James W. Colwile, Sir Edward Waughan Williams, Lord Justice Rolt, Sir Lawrence Peel - JJ.

• A condition inconsistent with the absolute dominion over the subject matter will be rejected as repugnant (Vide -

Nawazish Ali Khan v. Ali Raza Khan, AIR 1948 PC 134 S. Velu Pillai - J;

Maitheen Beevi Umma v. Ithappiri Varkey 1956 KLT 444 = AIR 1956 TC 268 – Koshi – CJ, Varadaraja Iyengar - J;

Mundayat Vadakke Purayil Kunhayissu and Others v. Chirukandan and Others 1971 KHC 418 = 1971 KLJ 796 = ILR 1971 (2) Ker. 419 – Subramanian Potti – J.

WHTHER DELIVERY OF POSSESSION GIVEN AND TAKEN IS A MUST FOR COMPLETION OF THE GIFT.

Q.11.1 Is a gift incomplete if delivery of possession is not given or taken ?

Ans.

• Yes. A gift is not complete unless possession is given and taken at the time of gift, that is, at the time of declaration and acceptance. (Vide Mulani Moula Bakhsh AIR 1924 All. 370 – Kanhaiya Lal, Mukerji - JJ).

• It is essential to the validity of a Muslim gift that there should be a delivery of such possession as the subject-matter of the gift is susceptible of (Vide Sadik Hussain v. Hashim Ali AIR 1916 PC 27 - Atkinson, Parker, J Edge, A Ali - JJ).

Q.11.2 If khas or physical possession cannot be given at the time of gift, will it be sufficient if “constructive possession” is given ?

Ans.

• Yes. Gift of equity of redemption can form the subject-matter of a valid gift. (Vide Nooru Mohamed v. Sultan Pillai 1955 KLT 865 - Joseph- J).
• If the donor has done all within his power to divest himself and put the donee in possession, that would be sufficient. (Vide Ismail v. Idrish AIR 1974 Pat. 54 (DB) - A Ahmad, B Singh - JJ;

Basirul Huda v. Muhammed Alimuddin AIR 1981 Pat. 291).

• Even if the property gifted is in the possession of a trespasser, such a gift is permissible in law provided the donor either obtains and gives possession of the property to the donee or does all that he can do to put the property within the power of the donee to obtain possession. (Vide Abdul Rahim v. Abdul Zabar (2009) 6 SCC 160 = AIR 2010 SC 211 - 3 Judges - S. B. Sinha, Asok Kumar Ganguly, R. M. Lodha - JJ).

• If the property is in the possession of a lessee or a mortgagee, delivery of constructive possession of the property to the donee would serve the purpose. (Vide Abdul Rahim v. Abdul Zabar (2009) 6 SCC 160 = AIR 2010 SC 211 - 3 Judges - S. B. Sinha, Asok Kumar Ganguly, R. M. Lodha - JJ).

• Where the property is in the occupation of tenant, a gift of the property will be completed by a request made by the donor to the tenants to attorn to the donee. (Vide Allah Rakha v. Ali Mohammad AIR 1929 Lah. 45).

• Where an oral gift of the property in the possession of complainant's tenants was followed by the donor asking the tenants to attorn to the donee the gift was held to be valid. (See - Hafiz Abdul Basit v. Ahmed Mian, AIR 1973 Delhi 280 - A Behari, J Singh, A Rohtagi – JJ.)

Q.11.3 Can the delivery of possession be postponed ?

Ans. Yes. But, possession taken at a subsequent date is sufficient if it is taken with the consent and during the lifetime of the donor. (Vide Jhumman v. Husain AIR 1931 Oudh. 7).