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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 1st defendant has not filed any  document of the said to confirm his right.  Hence  this  Court  holds  that,  the  plaintiffs  are  the  absolute  owners  of  the  property  and  they  are  entitled  for  declaration  of  the  suit  schedule  property.  Hence this issue is decided in favour  of the plaintiffs and against the defendants.”

  (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-1st.  That it establishes a  right of property in the donee, without being  obligatory on the donor; so that the gift may  be validly resumed or cancelled.  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

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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

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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

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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

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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-

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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.