3. Gifts to unborn persons
4. Conditional gifts
5. Gifts of undivided share (mushaa)
6. Gifts of property held adversely to the donor.
1. Gifts of Future Property:
Under Muhammadan law, a gift of future property cannot be made. The property to be gifted must be actually in existence at the time when the gift is made. If, however, the donor is entitled to a right to receive the fruits of any property, the gift of the right would be a legal gift, provided the owner divests himself wholly of the property gifted. A gift which is made to take effect in future is void.
Where a Muslim donor does not reserve his right over the corpus of the property, but stipulates that he would, during his life, enjoy the recurring income thereof, the gift is valid.
Yusuf v. Collection of Tippera, (1822) I.L.R. 9 Cal. 138. — Where a donor executed a deed of gift containing the words, “So long as I live, I shall enjoy and possess the properties and I shall not sell or make a gift to anyone, but after my death, you will be the owner,” the gift was held to be void.
Similarly, where the donor created a trust reserving the first life- estate to himself, it was held that the gift was void, as the so called trust-deed did not create any gift in praesenti, but the gift was to become operative only on the death of the donor.
A Muhammadan executes a deed in favour of his wife, purporting to give to the wife and her heirs in perpetuity Rs. 4,000 every year out of his share of the income of certain Jagir villages. Discuss whether the gift is valid.
The gift is void, as being a gift of a portion of the future revenue of the villages.
2. Contingent Gifts:
If a gift is made contingent upon the happening or not happening of a future uncertain event, such a gift is void in Muhammadan law.
Gift of Insurance Policies:
According to Muslim law, a declaration purporting to be a transfer of certain property by way of hiba to the donee at a future time contingent on the happening of a certain event is void; again, if the hiba is attached with a condition annexed, the gift is valid, but the condition is void.
That being so, the question arises, whether an assignment of a policy of insurance by a Muslim husband to his wife, is a void or valid gift. For example, suppose a Muslim husband, H, insures and assigns his policy to his wife, W, with the condition that if W predeceases H, the assignment will be inoperative, and in that event, will revert to H.
This transaction can be looked at from different points of view. It may be considered as creating a valid contractual obligation between the insurrer and the assured; or it may be regarded as a gift by a Muslim vitiated by a contingency, and therefore, invalid under Muhammadan law. Or, it may further be argued that it is a gift with a condition attached, and hence the condition is void and the gift is valid.
To set this controversy at rest, Section 38 of the Insurance Act, 1938, lays down that, “Notwithstanding any law or custom having the force of law to the contrary, an assignment in favour of a person made with the condition that it shall be inoperative, or that the interest shall pass to some other person, on the happening of a specified event during the lifetime of the person whose life is insured, and an assignment in favour of the survivors of a number of persons, shall be valid.”
Thus, where a husband assigned policies of insurance to his wife by a valid endorsement on the condition ‘that in the event of my said wife predeceasing me, this assignment was held to be perfectly valid. (Sadiq Ali v. Zahida Begum, (1939) I.L.R. 61 All. 957)
S, a Shia Muslim, took out a policy of insurance on his own life, and thereafter assigned to his wife N, by way of gift, but subject to the condition that if N died before the sum insured became payable or if S survived the date on which the policy matured, the gift was to stand revoked, and the assignment was to be of no effect.
N died just before the policy matured. On her death, her heirs claimed the amount of insurance as belonging to her estate. S filed a suit contending that the right was contingent and therefore bad in law, and, in any event, it stood revoked under the terms of the assignment. Will S succeed?
Under Muhammadan law, a gift cannot be made to take effect on the happening of a contingency. The terms of the assignment of the policy by S cleary show that the gift is contingent. S. 28 of the Insurance Act, 1938, however, provides that such assignments of policies are valid, notwithstanding any law or custom having the force of law to the contrary.
The words “any law or custom” in S. 38 are wide enough to cover Muhammadan law, and, therefore, the gift is not bad in law though contingent. (See Sadiq Ali v. Zahida Begum,(1939) I.L.R. 61 All. 957 discussed above.) But S. 39 of that Act provides that, if the nominee dies before the policy matures for payments, the amount secured by the policy shall be payable to the policy-holder. Therefore, the policy money is payable to S, and not to N’s heirs.
3. Gifts to Unborn Persons:
A gift made to a person not in existence at the date of the gift is not valid. Even when the gift to an unborn person is made through a trust, the gift is not valid. The only way in which a disposition may be made to an unborn person is by way of wakf.
4. Conditional Gifts:
When a gift is made subject to a condition which derogates from the completeness of the grant, the gift is valid, but the condition is void. Thus, if A makes a gift to Â on condition that Â shall not sell the property gifted, 6 will take the property as a valid gift, and he will not be bound by the condition, But, where the condition is not for the return of the corpus of the thing itself or any part of the corpus, but only for the payment of the interest or profits of the corpus, both the condition and the gift are valid.
(i) A Muslim lady transfers certain immovable properties by way of gift to her nephews, on condition that they should pay her Rs. 900 every year for her maintenance. She also reserves a right of residence for herself in a portion of one of the properties. The deed of gift contains a stipulation that if the payments are not regularly made, she should be at liberty to recover them by a suit. Is the gift valid?
This is not a valid gift, for the payment of Rs. 900 is not made dependent upon the profits of the corpus being sufficient to meet it; the consideration for the transfer is the promise to make the payment in any event. (Sarifuddin v. Mohiuddin. (1927) I.L.R. 51 Cal. 754, discussed earlier in this Chapter.)
(ii) A Muslim executed a deed of trust of part of his property for the benefit of his sons, with the condition that he was to remain in possession so long as he lived, with power to deal with the rents and that legal estate was to pass to his sons after his death. Discuss the validity of the gift of the property to the sons and the validity of the condition.
In this case, both the condition and the gift are invalid.
(iii) A Shia makes a gift of property to A and Â in equal shares, with a condition that if either of them dies without male issue, his share should go to the other, is the condition valid?
In Musammat Wahibunnisa v. Mushaf Husain (2 Luck. 117), it was held that the condition is valid according to Shia Law. But the reasoning in Sardar Nawazish Ali Khan v. Sardar Ali Raza Khan, (1948) 75 I.A. 62, would indicate that the gift would be void, and A and Â would take absolutely.
According to the Sunni Law, the condition would be void, and A and Â would each take his share of the property absolutely, and it would descend on his death to his heirs.
(iv) A makes a gift of certain property to B. It is provided by the deed of gift that Â shall not transfer the property. Is the restraint against alienation valid? Is the gift valid or void? Give reasons for your answer.
The restraint against alienation is void, and Â takes the property absolutely. (Babu Lai v. Ghansham Das, (1922) I.L.R. 44 All. 633)
(v) A Muslim makes a gift of his house to his son Â with a condition that Â should give the income of 1/3 of the house to A’s grandson C, during C’s lifetime. Is the gift valid?
Yes. Both the gift as well as the condition are valid. Here, the condition is not for the return of the house or part of it, but only tor payment of the interest of profits of the house.
(vi) A, a Muslim, makes a gift of Government promissory notes to B, on condition that Â should return a fourth part of the notes to A after a month. Is the gift valid?
The gift is valid, but the condition is void. Â will get the notes as a vaild gift, but he will not be bound by the condition to return a fourth part of the notes to A after a month.
5. Gifts of Undivided Shares (Mushaa):
In Muhammadan law, a gift of an undivided share in a property which is capable of division is not valid. An undivided share in property whether movable or immovable, is called mushaa. A valid gift may be made of a mushaa in property which is not capable of division.
However, a gift of mushaa is valid under the Shia law, even if the property is capable of division.
A gift of an undivided share (mushaa) in property which is cap of division is irregular (fasid), but not void (batil’), but a gift undivided share in a property which is incapable of division (e.g… a staircase which is common between the gifted property and the neighbouring property) is valid.
Thus A, who owns a house, makes a gift to Â of the house and the right to use the staircase used by him jointly with the owner of an adjoining house. Is the gift of the right to use the staircase valid?
Yes, the gift of the right to use the staircase, though it is a gift of mushaa is valid, for a staircase is not capable of division, i Hussain v. Sharif-un-Nissa. (1883) I.L.R. 5 All. 285)
Delivery of possession is a necessary condition to validate a gift. The gift of an undivided share where property is capable of divisionis, as a general rule, not valid, because, in such cases, deliver of possession becomes impossible, unless the part given is divided off. So long as the property remains undivided, possession cannot be said to be effectively given. Such a gift, however, may be perfected and rendered valid by subsequent partition and delivery of possession.
Thus, A makes a gift of her undivided share in certain lands to B. The share is not divided at the time of gift, but it is subsequently separated and the possession thereof is delivered to B. Here the gift is irregular in its inception, but it is validated by subsequent delivery of possession. (Muhammad Mumtaz v. Zubaida Jan, (1869) 16 I. A. 205)
The rules of Muhammadan law, including the rule regarding a gift of mushaa, were promulgated many centuries ago under a very different state of laws and society from that which now prevails in India. Therefore, efforts are made to soften the rigidity of the rule regarding mushaa where the altered conditions of life necessitate it, and try to bring it in accord with the requirements of progrees.
It was observed by their Lordships of the Privy Council in Muhammad Mumtaz v. Zubaida Jan, (1889) 16 I.A. 205, 215 that “the doctrine relating to the invalidity of the gifts of mushaa is wholly unadapted to progressive state of society, and ought to be confined within the strictest rules.’’
Gift of a Mushaa, when Valid:
A gift of an undivided share (mushaa) though it be a share in property capable of division, is valid (even if the share is not divided and delivered to the donee) in the following three cases:
(i) Gift by Heir to a Co-Heir:
Thus, a Muslim woman dies leaving a mother, a son and a daughter as her only heirs. The mother can make a valid gift of her undivided share in the inheritance to the son, or to the daughter or jointly to the son and the daughter. The mother, the son and the daughter are co-heirs. Therefore, the mother can make a valid gift of her undivided share to the son or to the daughter or jointly to her son and the daughter. (Mahomed Buksh v. Hooseini Bibi, (1888) 15 I.A., 81)
Under Muhammadan law, it is not necessary that the gift should be by a registered deed. Even an oral gift is valid.
(ii) Gift of a Share in a Zamindari or a Taluka:
In such a case, what is gifted is the right to receive, and to collect separately, a definite share of the produce or rents of an undivided land, and hence, it is valid.
(iii) Gift of a share in a company or in a freehold property in a large commercial town, e.g., a gift of a share in a house in a town like Mumbai or Kolkata.
Thus, A, who owns a house in Mumbai, makes a gift of one-third of the house to B. Is the gift valid? Yes, where a gift is of undivided share in freehold property in a large commercial town, it is valid, even though the property remains undivided and no possession is effectually delivered. (Ibrahim Goolam Ariff v. Saiboo, (1908) 34 I.A. 167) Mumbai is a large commercial town. Therefore, in the given problem, the gift of one-third of his house in Mumbai by A is valid.
Gift to Two or More Donees:
A gift of a property, which is capable of division, to two or more donees, without dividing their shares, is valid, if possession is given by the donor to the donees, notwithstanding the fact that the property has not been divided between the donees.
M, a Muslim, made a gift of a plot of land and other immovable properties to Â and Ñ by a registered deed of gift, and put Â and Ñ in possession of the land and properties. M died, and after his death, Â and Ñ effected a partition of the properties gifted to them, and the land came to the share of S. Thereafter, the heirs of M dispossessed Â of the said land. Â files a suit against the heirs to recover possession of the land and mesne profits. Is he entitled to succeed?
A gift to two or more than two persons of land whether as joint tenants or as tenants in common, if completed by possession, is valid. Â is, therefore, entitled to succeed. (Musa v. Bade Saheb, 32 Bom. L.R. 1108)
6. Gifts of Property held adversely to the Donor:
A gift of property by one who claims it adversely to the donor is not valid, unless the donor obtains and delivers possession of the property to the donee, or does anything to put it within the power of the donee to obtain possession.
In Maqbool Alam v. Khodaija (A.I.R. 1966 S.C. 1194), it was held that there can be a valid gift of property in the possession of the lessee or a mortgagee, and a gift may be sufficiently made by delivering constructive possession of the property to the donee. The view that a property in the possession of a usurper cannot be given away, is too rigid.
The donor may make a valid gift of a property in the possession of a trespasser, provided he either obtains and gives possession of the property to the donee or does all that he can to put it within the power of the donee to obtain possession.
A gift of a property in the possession of a trespasser is not established by a mere declaration of the donor and the acceptance of the donee. There must also be delivery of possession or some overt act on the part of the donor to put it within the power of the donee to get possession.
Gift of a Life-Estate (Amree), how Far Valid:
“An Amree (or 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)
On this point, there is a difference of opinion between the Hanafi and the Shia law. The Hanafi law treats such a gift as a gift with a condition, the gift being valid and the condition being void; but, in Shia law, the creation of a life-estate is valid, and therefore, the gift of a life-estate (Amree) is also valid.
It should be noted, however, that even the Hanafi law as to the gift of the life-estates, as stated above, has been considerably modified by the decisions of the Privy Council in Amjad Khan v. Ashraf Khan, (1929) 56 I.A. 213 and Nawazish AH Khan v. Ali Raza Khan, (1948) 75 I.A. 62.
In the former case, the Privy Council has ruled that under Muslim law, a life-interest cannot be enlarged into an absolute interest, and that such an estate is not to be considered as a gift with a condition, so that the gift would be valid and the condition would be void. (Both these cases are discussed later.)
The Hedaya discloses the tradition that the Prophet approved of Amrees (gifts for life). A donor can carve out the usufruct of the property gifted to another person, and reserve the enjoyment of that usufruct either for himself during his lifetime, or grant it to another person for his life. The gift of the usufruct, as well as that of the corpus, is both valid. (Muhammad v. Fakhr Jahan, (1922) 49 I.A. 195)
How Far Life-Estates are Recognised in Muslim Law:
Neither the texts nor the decided cases go so far as to hold that the creation of a life-estate is so repugnant to Muhammadan law that it would be absolutely void. In Humeeda v. Budlun, (1827) 17 WR 525, the Privy Council has laid down that as the creation of a life- interest is not in accordance with ordinary Muslim usage, the person urging the creation of such an interest must prove his case strictly. Thus Humeeda’s case does not suggest that, according to Muhammadan law, such an interest cannot be created.
In a series of decisions, it had been taken to be a well-settled rule of Muhammadan law that, under the Hanafi system, a gift of a life estate operated legally to confer an absolute estate on the donee, on the principle that the gift was good and the condition was void.
It was considered to be the Sunni law that gift of an interest in property did confer an absolute interest in the corpus, the rule being based on a passage in the Hedaya to the effect that, where there is a gift (Hiba) followed by a condition repugnant to the gift, the gift remains and the condition is rejected.
But this rule does not appear to involve the enlargement of what is, in terms, a life-interest, into an absolute interest. If life-interests are not to be held valid, then it is more in consonance with the theory of the voluntary nature of gifts to hold that, as there has been no intention to transfer the property absolutely, the transfer fails, than to hold that though the intention was to transfer only a life-unterest, yet the absolute interest is transferred.
The Privy Council, in Amjad Khan v. Ashraf Khan, (56 IA 213), overruled the earlier decisions, and held that the life-estate cannot be enlarged into an absolute estate, and although in this case the question whether the gift of the life-estate was valid under Muhammadan law was left open, it can be inferred from the judgment in the case that there is no hard and fast rule that, under the Muslim law, a life-estate is inconsistent with Muslim law.
In Nawazish AH Khan v. Ali Raza Khan. (1948 75 LA. 62). a testator, who was a Shia, bequeathed his property to A for life (if he was alive), then to Â for life (if alive at the time of A’s death), and then to Ñ for life (if Ñ was alive at the time of B’s death). The last devisee was then given the power to nominate, as his successor, any one whom he considered fit from amongst the descendants of A, Â and C. The Privy Council held that this power of appointment was invalid.
In the course of its judgment, the Privy Council observed as follows:
“The 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.”
Thus, the question is always one of construction. In Nawazish Ah Khan’s case, the Privy Council also made the following observations, which cover Sunni cases also: “In general, Muslim law draws no distinction between real and personal property; it does not recognise 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, tail, for life, or in remainder.
What Muslim law does recognise and insists upon is the distinction between the corpus of the property itself (ayn), and the usufruct in the property (manafi). Over the corpus of the property, the law recognises only absolute dominion, heritable, and unrestricted in point of time; and where a gift to 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.
But, though the same terms may be used in English and Muslim law, the two systems of law are based on quite different conceptions of ownership.Their Lordships think that there is no difference between the several schools of Muslim laws in their fundamental conception of property and ownership.”
Estate for life’ and ‘vested remainder’:
The Sunni law does not recognise what is known in English law as “vested remainders”, though it recognises life-estates.
In Abdul Wahidkhan v. Nuranbibi. (1885) 12 I.A. 91:1885) I.L.R 11 Cal 597, the Judicial Committee hold that ‘vested remainder did not seem to be recognised by Muhammadan law, and hence, the survivor cannot take the interest, unless he survives the tenant for life. The observations in this case must, however, be read subject to the Privy Council decision in Nawazish All Khan v AH Raza Khan, (1948) 75 I.A. 62 (discussed above).
An estate for life is not a gift and a condition. When a life-estate in a particular property is given to a donee, what is given is not the property itself, but only an interest therein or the usufruct of the property. The corporeal thing itself i- not given.
Thus, when a house is given to A for life and then to B, the house itself is not assigned to A: he enjoys the usufruct of it. Such a gift cannot be interpreted as a gift of the house itself and a condition to return the house (either to the donor or) to 6, because the house itself was never intended to be gifted away.
The gift-over which is to fake place after the termination of the life-estate is what is referred to as the “vested remainder’’ in English law. Thus, where property is given to A for life and then to B, the interest which is created in favour of B, is called a vested remainder. If Â dies during the lifetime of A according to the English law, B’s heirs will take the interest which Â would have taken. According to the Sunni law, which does recognise life-estates, B’s heirs will not take the interest which he would have taken had he survived A.