In a recent decision [V. Sreeramachandra Avadhani (D) by L.Rs. v.
Shaik Abdul Rahim & Anr], the Supreme Court of India
(“Supreme Court”) has had the occasion to deal with an intricate question under
Muslim Succession Law – whether there can be a conditional gift of a (immovable)
property? In 1952, Sheikh Hussein gifted a ‘titled house’ (through an executed gift deed) to his wife, Banu Bibi. It
was stipulated in the deed that Banu Bibi would enjoy the property during her lifetime
and would not alienate it. However, the property could devolve in favour of her
off spring after her death, and in case she does not have any children, the
property would be returned back to Hussein or his near successors. Notwithstanding
the conditions under the deed, Banu Bibi sold the house in 1978 to V. Sreeramachandra
Avadhani (Appellant – represented by
his Legal Representatives). Consequently after Banu Bibi’s death, the
Respondents (Shaik Abdul Rahim and Abdul Gaffor) staked claim over impugned
house on the ground that, (i) Babu Bibi only had a ‘life interest’ in the
property and could not have alienated it, and (ii) being legal representatives
of Sheikh Hussein, right and title over the property came to be vested on them.
Principal Senior Civil Judge dismissed Respondents’ claim for
the reason that since the gift deed was
not in nature of usufruct, the gifted property came to be ‘irrevocably’
vested on Babu Bibi. As such, the conditions in the gift deed, limiting her
rights, were void [Relied on: Nawazish Ali Khan
v. Ali Raza Khan, AIR 1948
PC 34]. Against this order, the Respondent filed first
appeal. While reversing the order of Senior Civil Judge, the First Appellate
Court relied on the ‘text’ of the gift deed that had limited the rights of Banu
Bibi and had provided that the property would be returned back to Hussein or
his near successors. Dissatisfied with the judgement of First Appellate Court,
the Appellant filed an appeal before the High Court of Judicature of Andhra
Pradesh (“High Court”). Appellant did not get any relief and the High Court,
again relying on the text of the gift deed, affirmed the First Appellate Court’s
order.
When the matter came before the Supreme Court (through a
Special Leave Petition), the court first pointed that none of the appellate
courts had determined the ‘nature and effect’ of the gift; rather, they had
treated the controversy as a dispute to factual situation. That is, it was
not considered by the appellate courts whether the gift was with respect to
corpus of the immovable property or was its usufruct. Under Muslim Law, a gift
has to be ‘unconditional’ and where a gift is made with fasid or invalid
conditions, the gift will be valid and conditions void [See: Asaf A.A.Fyzee, ‘Outlines of
Muhammadan Law’, 5th Ed., edited
and revised by Tahir Mahmood, Oxford University Press].
Similarly, where a gift is made subject to certain conditions thereby
derogating the ‘completeness of the grant’, gift will take effect as if no
conditions were mentioned [See: ‘Mulla’s
Principles of Mahomedan Law’, 19th Ed., by M. Hidayatullah and
Arshad Hidayatullah]. Hence, a ‘conditional gift’ is valid but the conditions
are void. The court referred to Privy Council’s decision in Nawazish
Ali Khan (supra) wherein a distinction was drawn between the corpus
of the property (ayn) and the
usufruct in the property (manafi) in
the following terms:
“...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 absolute 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....
.....
Muslim law admits only ownership unlimited
in duration, but recognises interests of limited duration in the use of
property....
.......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 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.”
In other words, with respect to a property, there can be
forms of transfers – first, where property in itself is transferred, for e.g.,
its title; and second, where only interest in the property is transferred (for
e.g., rent, profits, permission to live for a certain duration etc.). As such,
there is a distinction between the transfer of thing itself and transfer of use
of the thing. The Supreme Court, in V.
Sreeramachandra Avadhani (supra), i.e., the present case, summed up the legal position as follows:
(i)
Gifts, contemplating the transfer of corpus of
the property, are absolute in nature with conditions therein void. Transfer of
corpus refers to the change in ownership.
(ii)
Conditions are however permissible, if the gift
is merely of a usufruct. Transfer of usufruct refers to a change in the right
of its use/enjoyment etc
Stating this legal position, the Court found the gift deed
in the present case to have contemplated the transfer of the ‘corpus of the
property’. The reasons which weighed the decision of the court were, (i) all rights
of the donor, including title, were sought to be transferred; (ii) Conveyance
was not intended to be cancelled; (iii) The property could be transferred to
Banu Bibi’s successors and the same would not be assailed; (iv) By mutating
Banu Bibi’s name in revenue records, the intention was to make the gift deed
public; and (v) Donor did not retain any documents with respect to the
property. Since it was the ‘corpus of the property’ which had been transferred,
the conditions in the gift deed limiting Banu Bibi’s rights were held to be
void. The appeal was thus allowed by the Court.
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