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Kusum & Poonam Pradhan Saxena - Family Law/Family Law/VOLUME II/CHAPTER 14 GIFTS
CHAPTER 14
GIFTS
INTRODUCTION
The Transfer of Property Act, 18821.^ deals with transfer of property by way of gifts. These provisions however do not apply
to gifts made by Muslims, who are consequently governed by the provisions of Muslim law.2.
The rights of a person to dispose of his separate or self-acquired property inter vivos and at his pleasure are universally
recognised. Under Muslim law also, a person is competent to make a gift of his total property during his lifetime and unlike
the situation under the Transfer of Property Act, 1882, the gift here is operative with immediate effect and divests him of his
control and ownership over the property.
Gifts can be made with a specific purpose or simply out of love and affection. A gift made to one son so as to strengthen
his financial position in comparison to other sons who are financially better placed than him is perfectly valid. A gift can be
made even with the object of disinheriting an heir.3.^ Though the purpose behind a gift is immaterial, yet, if it is to defeat the
provisions of a law such as with an intention to defraud the creditors,4.^ such gifts are not valid and are voidable at the
option of the creditors, though the mere fact that a person owed some debts at the time of making the gift5.^ or was even
insolvent, is immaterial and does not affect the validity of the gift.
CONCEPT OF GIFT
Gift is the transfer of certain existing movable or immovable property made voluntarily and without consideration by one
person called the donor to another called the donee and accepted by or on behalf of the donee, followed by immediate
delivery of possession of the subject matter of the gift.
Gift therefore is a transfer of property. All the rights of the donor vest in the transferee with the help of this conveyance.
The donor gets the title, a right to possess and enjoy the property and a right to sell it at his pleasure if he is otherwise
competent to do it.
The term 'Gift' is often understood as a synonym of 'Hiba' or an English equivalent of Hiba, but has a wider connotation
than Hiba. Hiba is defined as 'the donation of a thing from which the donee may derive a benefit'.6.^ It is also explained as
an unconditional transfer of property made immediately without any exchange or consideration by one person to another
and accepted by or on behalf of the later. Fyzee defines7.^ it as an immediate and unqualified transfer of the corpus of the
property without a return. Baillie defines it as the conferring of a right of something specific without an exchange.8.
REQUIREMENTS OF A VALID GIFT
There are three basic requirements for the validity of a gift:
(i) Parties to the gift:
(a) The donor
(b) The donee
(ii) Subject matter of gift
(iii) Essential ingredients of making of a gift:
(a) Declaration (Ijab) by the donor
(b) Acceptance (Qubool) by the donee
(c) Immediate delivery of possession (Qabza)
The Donor
Any Muslim, who is major and of sound mind ie competent to contract can make a gift of his property. The age of majority
for determining the competency of gift is eighteen years in ordinary cases, and is twenty-one years where a guardian has
been appointed by the court.
Gift by a Woman
There is no discrimination on grounds of sex, and a female is also competent to make a gift. It is irrespective of the fact of
her marital status. She may be married, unmarried, widow or a divorced. She may be very active socially, an outgoing
person or a Pardanashin woman. In case a gift is alleged to have been made by a Pardanashin woman and it is disputed,
the burden of proving that she understood the full implication of the nature of her actions is on the donee.9.^ The rule is in
tune with the equitable principle that persons who have less or practically negligible interaction with strangers due to social
customs, need special protection for their own benefit. The Madras High Court10.^ in relation to a gift executed by a
Pardanashin woman has observed:
A gift deed executed by a Pardanashin lady stands in a peculiar position. The disposition made must be substantially understood and must really be the mental act, as its execution is the physical act of the person who makes it... They (donees) must satisfy the court that the deed has been explained to and understood by the party thus under disability, either before execution, or after it under circumstances which establish adoption of it with full knowledge and comprehension.
The Madhya Pradesh High Court11.^ also held that where the gift is made by a Pardanashin woman the donees must
establish that she understood the full nature and implication of the transaction. The duty is also on the court to scrutinise
the document very closely and inspect it thoroughly to judge its fairness. The requirement of a closer scrutiny is all the
more imperative in cases where the gift deed is executed in a language that is not the mother tongue of the Pardanashin
woman. In these cases the donee has to satisfy the court that not merely was the document read over to her, but she
actually understood it ie its contents and implications were told to her in the language she was familiar with.
Donor must have Ownership in the Property
In order that the donor can make a valid gift, he must be the owner of the property. A trespasser cannot make a valid gift of
the property in his possession.12.
Financial Obligations of Donor Immaterial
Donor can make a gift of his property and as aforesaid, he must have ownership in this property. If he has a bona fide ,
genuine intention to make a gift of his property, his financial obligations would not stand in his way of making a valid gift. A
person who has contracted debts can make a valid gift except when it is with an objective to defraud his creditors. In those
cases it would be voidable at the option of such creditors. The gift can be to the extent of a part of the property or even the
total property.
Donee
For a donee, competency to contract is not an essential requirement. A donee can be a minor or even a person of
unsound mind. The only requirement is that he should be a juristic person, capable of holding property. A mosque is a
juristic person and competent to be a donee. The donee can be of any sex, any age and even of any religion. He can be a
relative or even a stranger. Property can validly be gifted to a female irrespective of her marital status.
Gift to Unborn Person
The donee can be a minor or a major but he must be in existence. A gift to an unborn person is void. However, a gift to a
person by way of a maintenance allowance for life and to his male heirs not in existence on the date of making the gift will
be valid provided they are born by the time the interest in favour of the living person comes to an end. Under the Transfer
of Property Act, 1882, property can be settled for the benefit of a person not in existence on the date the settlement is
created.13.^ The mode of settlement is that the life interest should be created in favour of a living person and the absolute
interest in this property on the death of this life estate holder should vest in the person who was unborn on the date of
execution of settlement and is born subsequently but before the life interest comes to an end. The moment such a child is
born he takes a vested interest in the property. This settlement should not offend the rule against perpetuity.
Gift to a Child in Womb
A valid gift can be made to a child in the womb of his mother, provided it is born within six months of the date of the making
of gift. In such cases the child is treated as a separate entity.
Gift of Property Held Adversely to Donor
Where the donor does not have the actual physical possession of the property as the same is held by another person
adversely to the donor, the donor cannot make a valid gift of it unless:
(i) he actually obtains and delivers possession to the donee; a mere declaration is not sufficient,22.^ or
(ii) does all that can be done by him to complete the gift thereby enabling the donee to be in a position,
from where he can obtain possession.
Illustration : A gifts his land to B , that was held by C adversely against A , after filing a suit against C. He obtains
possession and delivers the possession to B. The gift is valid.23.^ Similarly, if the donor files a suit against a trespasser after
executing a gift in favour of the donee and the donee joins in the suit, it is not open to the trespasser to challenge the
validity of the gift on the ground that since no possession was delivered the gift was void. This is because the moment the
donor admits the claim of the donee before the court and pursues the suit to enable the donee to take possession, the gift
is valid and complete.24.^ The rule, therefore, is that if the donor has done what all he/she could do to put the donee in
possession, by filing a suit, and for executing a 'hibanama' authorising the donee to take possession and there was nothing
more that she could do, the gift would be valid as constructive possession would be deemed to be delivered.25.
Gift of an Equity of Redemption
The right of a mortgagor to repay the loan and redeem or reclaim the mortgaged property is called his equity of
redemption. This equity of redemption is an interest in the immovable property and is transferable. A gift of equity of
redemption by the donor is valid if the possession of the mortgaged property is with him and he completes the gift by
delivery of possession of the mortgaged property. In some kinds of mortgages such as usufructory or even an anomalous
mortgage, the possession is with the mortgagee and in such cases it may not be possible for the mortgagor to deliver the
possession of the property to the donee. With respect to the validity of such gifts where the possession is with the
mortgagee, there is conflict of judicial opinion. The predominant view is that in such cases even delivery of constructive
possession is sufficient or it must be shown that some appropriate action was taken by the donor to complete the gift.26.^ In
an earlier decision of the Bombay High Court27.^ it was held that delivery of possession is essential for the valid completion
of a gift and since the possession of the property was with the mortgagee under a valid contract, the gift of equity of
redemption would not be valid for want of delivery of possession. It is submitted that the view, upholding the validity of the
gifts after delivery of constructive possession in these cases appears to be correct.
Essential Ingredients of a Valid Gift
There are three essentials of a valid gift:
(i) Declaration by the donor
(ii) Acceptance by donee
(iii) Delivery of possession of property
The first important essential for the completion of a valid gift is that the donor must make an offer (ijab) to make a gift, the
second is that this offer should be accepted (qubool) by the donee and if he is incompetent to accept it personally for want
of capacity, then the acceptance should be given by a competent person on his behalf. The third essential ingredient is that
offer and acceptance must be followed by an immediate delivery of possession of the property (qabza). If these three
conditions are fulfilled, the gift is valid and complete.28.
Declaration
The offer to make a gift must be 'declared' voluntarily and with free consent. It must be clearly manifested without any
ambiguity. A mere permission to live in house so long as a person is employed would not make him the donee or a
recipient of gift of the house as a permission is not the same as a declaration and according to the Supreme Court,
declaration is a pre-condition for the validity of a gift.29.
It is very important that the declaration should not be tainted with a fraudulent motive on the part of a donor, such as to
defraud the just claims of creditors. In such cases the gift would be voidable at the option of the creditors,30.^ but as
explained above, mere indebtedness would not stand in the way of the competency of a donor to make a gift.31.^ The
intention should be real and bona fide .32.
A declaration cannot be made in isolation and has to be made in the presence of some witnesses or by way of a public
statement, that the donor was gifting the property to the donee and thereby divesting himself of the complete control over
it, and has either delivered or was completing the gift by such delivery of possession as the property was capable of. A
declaration cannot be made unilaterally without making a public statement to that effect.33.
In a case before the Supreme Court,34.^ the owner of three pharmacies entrusted the management of one pharmacy each
to his three sons. That continued even after his death. As each brother was looking after a separate pharmacy, the profits
were not distributed under this arrangement till a suit for partition was filed by one brother. On the point of gift, the court
said that a convenient arrangement of management of an establishment was not a gift under Muslim law in absence of a
declaration to that effect. As aforesaid, the declaration should not be induced by fraud or undue influence or by the use of
force or even under compulsion. Where a woman was brought to another city on a false pretext and was made to sign the
gift deed, before she could consult anyone, the court held that her consent was not free and the gift was void.35.
Acceptance
The second essential requirement for the validity of a gift is that it must be accepted by the donee, if he is competent to
accept it himself or by a competent person on his behalf if he lacks capacity to accept it himself.36.^ Under Muslim law,
acceptance on behalf of a minor or a person of unsound mind can be given by the guardian of his property. The guardians
of the property of a minor are the following in the same order viz., father, his executor appointed under his Will, paternal
grandfather, his executor appointed under his Will. Father if alive, is the sole guardian of the property of the minor. He can
appoint an appropriate person, either a relative or even a friend to act as a guardian of the property of a minor as an
executor in his Will. Next to him is the paternal grandfather, who also has a similar power to appoint a guardian of the
minor as an executor under his Will. No other relative of the minor including the mother, brother, maternal grandfather etc
are stipulated as legal guardians. However, they can be so appointed under a Will by the father or the paternal grandfather.
Thus, where the father appoints the mother as an executor under his Will, she is competent to give an acceptance for the
gift offered to her minor child. Where the father is alive, he alone is the legal guardian and no one else can even act as a
guardian of the property of his minor sons. If through a declaration, the offer of a gift is made to the minor sons, the
acceptance must come from the father failing which the gift would be incomplete and therefore void.37.^ In Musa Miya v.
Kadar Bux38.^ there was a declaration by the donor in presence of his assembled friends that he had made a gift of his
property to his grandsons. This was expressed in the following words by means of a letter sent to the father of these minor
children by their maternal grandfather.
Now both the children, Essen Mian and Moosa Mian, are the owners of my property.
However, there was no evidence of either an acceptance given by the father or of the delivery of possession of this
property to the father of these minors. The gift was therefore held incomplete and invalid. Similarly in another case before
the Supreme Court,39.^ both the father and the paternal grandfather of the minors were present. The paternal grandfather
executed a gift in favour of his son's sons in presence of their father. This gift was accepted by the mother of the children.
On a challenge to the validity of the gift, the Court held that the gift was invalid as it was not accepted on behalf of the
donee by a guardian of the children's property, but was accepted by a person who was not a guardian of the property and
hence incompetent to accept it.
Acceptance by a Person , who is not the Guardian of Property : The natural guardians of the property of a minor are
only his father and failing him the paternal grandfather. The testamentary guardians are father's executor appointed under
his Will, and the paternal grandfather's executors again, appointed under his Will. The mother of a minor child, son or
daughter is not his/her legal guardian but can be a testamentary guardian, if she was so appointed by either the father or
the paternal grandfather under their Wills. In case of a minor married woman, where she has attained puberty and after
marriage has lived with the husband, such husband is competent to accept the gift on behalf of his minor wife even though
her father might be living.40.
A question arises, whether an acceptance given by a person on behalf of a minor, who is not a guardian of his/her
property, would be a valid acceptance. In Katheessa Umma's case,41.^ the husband and the wife were living with the wife's
mother in her house. The husband was ill and was being taken care of by them. He executed a registered gift deed in
favour of his wife and her mother accepted it on her behalf. On his death, his brother and two sisters claimed his property
(3/4th share ) by inheritance, while the wife claimed the total property under the gift. The brother of the deceased
contended that the mother was not a guardian of the property of the minor wife and therefore not competent to accept it on
her behalf, so the gift must fail. The question before the court was, when the husband makes a gift to his minor wife in
absence of her father and father's father can he give its possession to her mother, without affecting its validity? Was it
absolutely necessary that possession of the property must be given to a guardian specifically to be appointed by the civil
court in such cases? The court quoted with approval the following rule:42.
The donor may lawfully make a gift of a property in the possession of a lessee or a mortgagee. For affecting a valid gift the
delivery of constructive possession of the property to the donee would serve the purpose. Even a gift of property in
possession of a trespasser is permissible in law provided the donor either obtains possession and gives it to the donee or
does all that he can to put it within the powers of the donee to obtain possession.
In Abdul Rahim v. Sk Abdul Zabar53. , a Muslim father who was about 85 years old executed a gift deed of his properties
(land) that he had purchased in favour of his son in 1973. In 1975, he filed an application before the Tehsildar for mutation
of his son's name in his place as the owner. His other son challenged the validity of this gift on the ground that since the
possession of the property was not handed over to the younger son (donee) by the father, the gift was illegal, void and
inoperative. During the pendency of the litigation, the donee died and his legal heirs were substituted in his place. The
main argument of the donee was that as he was collecting rent from the tenants of the land in his own capacity and not as
an agent of the original owner of the property, and an order of mutation was passed in his favour at the behest of the
donor, the requirement of delivery of possession of the property was met with for completion of the gift. The high court held
that as the son was collecting rent from the tenants even before the death of the donor, there was no material to show that
the father had divested himself of the title of the said property and had put the son in possession of the property. The apex
court overruled the decision of the High Court, accepted the claim of the son and held that the gift was valid as the
essential requirement of delivery of possession of the property was adequately met with in this case. The Supreme court
laid down six criterions for the validity of a gift under Muslim law54.:
(i) Donor should be sane and major and must be the owner of the property which he is gifting;
(ii) The thing gifted should be in existence at the time of Hiba;
(iii) If the thing gifted is divisible, it should be separated and made distinct;
(iv) The thing gifted should be such property to benefit from which is lawful under the shariat;
(v) The thing gifted should not be accompanied by things not gifted, i.e., should be free from things which
have not been gifted;
(vi) The thing gifted should come in possession of the donee himself or of his representatives, guardian or
executor.
The court held that the gift was registered and contained a clear and unambiguous declaration of total divestment of
property. It further said that a registered document carries with it a presumption of its valid execution and a party
questioning it has to show that it was not a valid transaction. The agency of collecting rent by donee during the lifetime of
the father came to an end and he started doing it for his own self after the gift.
Exceptions to the Rule of Delivery of Physical Possession : There are three exceptions to the rule that in order to be
complete and valid, the offer and acceptance must be followed by immediate delivery of physical possession of the
property ie physical departure of donor and formal entry of donee. These exceptions are:
(i) where the gift is by the husband to the wife or vice versa;
(ii) where the gift is by the father to the minor child or by guardian to the ward; or
(iii) where the donor and donee reside in the same property which is the subject matter of gift.
Gift by Husband to the Wife of Immovable Property : Where the husband makes a gift to the wife of either the
matrimonial home occupied by both of them or any other property belonging to him there is no need for an actual physical
departure by the donor. The reason is that the relationship of husband and wife is different from any other relationship.
Joint residence is an integral aspect of this relationship and the fact that the husband manages and looks after the property
of the wife is backed by an implied presumption that he does it on behalf of his wife. In Fatmabibi v. Abdul Rehman Abdul
Karim ,55.^ the husband made an oral gift of a house to his wife. On a challenge to the validity of the gift the trial court held
that the gift fulfilled only one condition i.e. of declaration and as the rest of the two conditions i.e. acceptance and delivery
of possession were not present, the gift was invalid. The matter went in appeal to the Gujarat High Court which reiterated
the established principle of law, that in case of gift by the husband to his wife, of the house that they were occupying, there
is constructive delivery of possession and acceptance and the gift was valid. Even where the property is let out to tenants
and the husband collects the rent, it is presumed that he does it on behalf of his wife.56.^ Thus where the husband gifts
agricultural land to his wife by a declaration and hands over the deed to her then, despite the fact that no mutation of
names was done, the gift is valid.57.^ Similarly, where the husband gifts the matrimonial home and a chawl next to this
home, which was occupied by tenants, to his wife and continued receiving rents from the tenants in the chawl, the gift is
complete and valid and the presumption that the husband is managing the property that now belongs to the wife, arises.58.
A mutation of names will be a clear proof of the genuineness of the intention, but it does not mean that mutation of names
is essential, more so in cases where the gift is properly declared and the gift deed is handed over to the wife.59.
Where there is no need of a formal and physical delivery can the delivery of gift deed be made to the mother of a minor
wife, in absence of any guardian? In Katheesa Umma's case,60.^ a gift was made by the ailing husband in favour of his
minor wife, who was around 17 years old. The gift deed was registered and was handed over to the mother of the wife, in
whose house the couple was living at that time. There was no guardian of property of the wife, either natural or
testamentary. The brother and sister of the deceased husband claimed his property and refuted the claim of the wife on the
grounds that since the mother of the wife was not the guardian of her property, the gift is invalid for want of delivery of
possession. Here, the gift deed was registered. Upholding the validity of the gift the Supreme Court observed:61.
The rules on the subject may first be recapitulated. It is only actual or constructive possession that completes the gift and registration does not cure the defect nor is any bare declaration in the deed that possession was given to a minor of an avail without the intervention of the guardian of the property unless the minor has reached the years of discretion. If the property is with the donor he must depart from it and the donee must enter upon possession. The strict view was that the donor must not leave behind even a straw belonging to him to show his ownership and possession. Exceptions to these strict rules which are well recognised are gifts by the wife to the husband and by the father to his minor child. Later it was held that where the donor and donee reside together an overt act is necessary and this rule applies between husband and wife.
Here there was a declaration and a tender by the donor and as the gift was by a registered deed there was no ambiguity
with respect to the intention of the donor. The deed recorded that the possession of the property was given to the mother
and she had taken it on behalf of the wife. The court noted that the husband could have taken the possession on behalf of
his wife himself, as a husband is competent to accept the gift on behalf of his minor wife, who has obtained puberty and
who has lived with him, even where her father is alive. The court held here that the gift was valid as the wife had attained
the age of discretion, and they both were living in the house of the mother of the wife. The intention to make the gift was
clear and manifest because it was made by a registered deed. There was complete intention to divest ownership on part of
the donor and to transfer the property to his wife. The mere fact that he handed the deed to the mother would not make the
gift invalid. Rather, the court held, the mother was capable to accept the gift on behalf of the minor wife in absence of any
guardian.
Gift by Father to Minor Child or by Guardian to the Ward : Where the father makes a gift in favour of his minor child, or
a guardian gifts the property to his ward, delivery of possession of property is not essential and all that needs to be
established is that there was a bona fide intention on the part of the father or guardian to make a gift.62.^ This rule
recognises the fact that here the donor is a person, who only is competent to accept the delivery of possession of the
property. Where the giver and accepter is one and the same person, to insist on a formal delivery of possession would not
be meaningful. It would be for all purposes a delivery by the right hand to the left hand.63.^ But where the property is gifted
by the father to his minor child and also to another person along with her, delivery of possession is necessary, e.g. a gift to
a minor daughter and her major husband.64.
'Guardian' refers to the guardian of property that includes the father, his executor, paternal grandfather and his executor in
this order. If the father is alive he alone is the guardian of the property and the gift made by the mother or maternal
grandfather65.^ would require delivery of possession of the property.
In Musa Miya v. Kadar Bux ,66.^ a declaration was made by the maternal grandfather of two minor boys on the 26th day of
Ramzan before several persons whom he had invited for dinner, that he was going to Mecca for a pilgrimage and he had
made a gift of his properties to his two grandsons and made them the owners thereof. The declaration was also
communicated to the women of the household at his request. The donor's daughter, her husband and these two minor
boys were all living in the donee's house with him and were also maintained by him, but at the time when this declaration
was made, the father was away. He was informed about the gift with the help of a letter sent by the grandfather to him.
Soon after the declaration, the donor went to Mecca and returned three months later. He resumed the charge of this
property and managed it as before till he died around 9 years after he had made the declaration. Three years subsequent
to the offer of gift, the donor received some land in his name which were earlier purchased in the name of his brothers but
were bought for him. No steps were taken by him to effect a mutation of names or give any indication of conferring
ownership or control of the property in favour of the minors. The minor boys and their father were all along living with the
donor, but they never participated in the management of the property. On the death of the donor, his brother claimed 3/8th
share of the total property and the minor boys claimed the entire property under the gift. The counsel for the minor boys
argued that in view of the facts of this case, and the special relationship of the grandfather and the grandson, there was no
need for delivery of possession of the property and it could be validly presumed that the donor was managing the
properties on behalf of the minor grandsons. Rejecting this contention, the court said that the gift in this case was
incomplete for want of delivery of possession. The maternal grandfather was not the guardian as the father of minor
children was alive. Despite the fact that the children and their parents were living with the grandfather and he willingly
maintained them, these facts alone would not be sufficient to dispense away with the requirement of delivery of
possession. The gift was held to be incomplete and without any effect in law.
Gift to a Minor by a Person other than the Father or Guardian : The exception that formal delivery of possession of
property is not required is applicable only where the donor is a person who himself is also competent to accept the gift on
behalf of the donee ie he is either the father or any other guardian of property of the donee. But where any other person
makes a gift and the donee is a minor, delivery of possession is a mandatory requirement.67.^ Such gifts will be complete
when the possession is delivered to the father of the minor or to his guardian and in their absence to a person under
be of little relevance. It is not the possession by the donee on the date of the dispute but the immediate delivery of
possession of the gifted property on the date of making of the gift that has to be proved. The fact, that the alleged donee
took possession of the property, looked after it during the lifetime of the donor, discharged the debts of the owner,
performed his last rites and was allowed possession for full one year after his death would not be of importance if the
making of gift is not proved. Even a notice served on him by the Panchayat to pay house tax is not sufficient and what he
has to prove is, when and how the gift was made in his favour.89.
Thus where the alleged donee could neither disclose any details of the oral gift nor the date on which it was made, the
property at the time of the litigation stood in the name of the donor only and the subsequent conduct of the parties was
inconsistent with alleged execution, the court held that the gift was not proved.90.^ But an oral gift made by a man in favour
of his wife by a declaration, acceptance and a constructive delivery of possession is perfectly valid.91.
Gift deed executed simultaneously with an oral gift
As aforesaid an oral gift under Muslim law is perfectly valid so long as it is validly declared by the donor, validly accepted
by the donee and is followed by delivery of possession of the property. It must be proved properly or may be reduced to
writing later. Though there is no requirement under Muslim law for a gift to be in writing yet according to the judicial
opinion, if the gift deed was executed either prior to or simultaneously with it than in order to be valid it must be registered
in accordance with the provisions of the Transfer of Property Act, 1882. If the gift deed accompanies or follows an oral gift
such gift deed must be registered and its non-registration would adversely affect the validity of the gift. In Faridsaheb v.
Ahmedsaheb,1^92 along with an oral gift deed the donor executed a gift deed giving his complete property to one of his
sons that was also followed by delivery of the possession of the property. The Bombay High Court held that as the deed
was executed prior to or simultaneously with the oral gift it required registration and the gift would be invalid as it was not
registered in the present case.
MUSHAA
'Mushaa' is an Arabic word derived from 'saayu' that signifies confusion. It refers to an undivided share in the property.2^93
Property may be in the nature of independent unit, that can be ascertained, specified and identified independently or it may
be part of an independent unit, which is yet to be specified. The term 'property' includes an undivided share in a property
which can be the subject matter of a valid gift.
For example, a person A is the owner of a land X. This piece of land is ascertainable as an independent unit, and is
capable of delivery of possession by itself without effecting the rights of anyone else. Suppose A had three sons B , C and
D. On the death of A all these sons together inherit the property. The share of each of them will be one-third, but which
one-third of the land will go to the share of which son can be ascertained or specified only by a formal demarcation or
partition or actual division of the property. Till that is done, each will have an undivided share in the land. With respect of
Mushaa or undivided share, two situations are possible:
(i) undivided share can be in a property, which is capable of division without effecting its value or
character substantially; and
(ii) undivided share is in a property that is incapable of being divided. In trying to divide it, either the
property will be destroyed or its intrinsic value will be lost or it will be rendered useless, e.g. two
brothers inherit a house that has a common entrance, staircase or a right of way, a utensil, a carriage,
tapestries, artefacts, well, clothes, ornaments etc.
Gift of Mushaa
In order to effect a valid gift of Mushaa, the compliance of all the three conditions is necessary, ie, declaration, acceptance
followed by delivery of possession, but problem may arise in some cases in complying with the third essential viz., delivery
of possession. For that the rules are as follows:
Where the Undivided Share is Incapable of Division
Where the property (the undivided share) is not capable of division and admits only common enjoyment such as a
staircase,3^94 well, the banks of a tank,4^95 a right of way, a share in business in Turkish bath,5^96 the property can be validly
gifted without effecting a division of the property. In such cases the donor should by some act clearly demonstrate his
intention to put the donee in possession of the property as the nature of the property admits.
Where the Property is Capable of Division
Where the property is capable of division, it should be divided and its possession handed over to the donee. However,
even if it is not partitioned and delivered to the donee it is merely irregular and not void and can be validated subsequently,
by effecting its division and delivery of possession.
Under Shia law, the gift of an undivided share in a property capable of division is valid.6^97
Under Sunni law, the gift of Mushaa in a property capable of division is valid from the date of its inception, despite the fact
that no division is effected in certain specific situations. These are as follows:
(a) where the gift is made by one co-heir to another co-heir;
(b) where the gift is of a share in a Zamindari or Taluka;
(c) where the gift is of a share in freehold property in a large commercial town;
(d) where the gift is of shares in a land company.
Gift by One Co-heir to Another Co-heir : Co-heirs are persons who succeed to the estate of a deceased together. They
take their shares as tenants-in-common, and the extent of the share is well-defined, but the property may not be formally
divided. The only condition is that their inheritance should be from the same intestate. For example, two sons succeeding
to the estate of their father are co-heirs, wife and children inheriting the property of a 'Muslim man', a brother and a sister,
two sisters, or a grandmother and a granddaughter would be co-heirs. In Mahommad Buksh v. Hossenni Bibi ,7^98 a Muslim
woman died leaving behind her children and her mother. The mother succeeded to one-sixth of her property that consisted
of around 22 villages, the other five-sixth going to her husband and her children. She executed a gift of her one-sixth share
in favour of the children of her deceased daughter. She and the children were the co-heirs of the deceased female, and
therefore, the contention that the gift was invalid for want of demarcation of the shares and delivery of possession, was
rejected by the court, and it was held that the gift was valid.
Constructive Possession : If the gift is by a co-sharer to another sharer and the co-sharer is in possession, the
possession is deemed to be on behalf of the other.8^99
Gift of a Share in Zamindari or Taluka : This exception is of little importance after the Zamindari were abolished by the
Government of India. Undivided share in a Zamindari9^100 or in Kaimi land10^101 or the land that is statutorily impartible is
valid without its actual division.
Gift of a Share in a Freehold Property in a Large Commercial Town : There are two requisites of this clause viz., the
share should be in a freehold property and secondly, the property should be in a large commercial town. Such a share can
be gifted validly without effecting its division.11^102
Gift of a share in a land company is valid.12^103
Gift of Mushaa and its Subsequent Validity
Where the property is capable of division, but is not divided and is gifted the gift is valid under Shia law and merely
irregular under Sunni law where it can be validated by effecting a division subsequent to the making of the gift. In
Hyatuddin v. Abdul Gani ,13^104 a Muslim man died in 1948, leaving behind one sister, two widows and a boy who was
brought up in his house since childhood. The share of each widow was one-eighth and of the sister was three-fourth. The
sister and one of the widows executed a gift in favour of this boy, Hyatuddin in 1952, of their respective shares 3/4 + 1/8 =
7/8th of the property. The gift deed stated that the donee had the possession of the gifted property and he was empowered
to use them in any manner that he liked. The gift deed further stated that the share of the other widow was separated and
none of their (donor's) heirs would have any interest in the property. In 1955, both the donors and also the donee filed a
suit for a declaration that the donee was the owner of the property and in the alternative, of partition and separate
possession of the property in his favour. During the pendency of the litigation, the sister died, and her heirs claimed that
the gift being void had no legal effect and accordingly, they were entitled to inherit her three-fourth share in the property.
The court proceeded on the assumption that no formal division of the property was effected. However, the tenants were
given a direction to pay the rent to the donee and the tenants were complying with these directions. The court held that the
gift was merely irregular at the time of its inception and the moment a suit for partition and separate possession was filed, it
was perfected. Similarly, in Hamid Ullah v. Ahmad Ullah ,14^105 the property consisted of six houses and three lands, and
the donor who was not in physical but constructive possession of the property executed a registered gift deed. The
document recited that the donor was in possession of the property and was conveying the same to the donee. She had
given up all her rights in the property and the donee was at liberty to deal with the property in any manner he chose. The
court held that the gift was valid as the donor had done practically all that she was able to do in the way of divesting herself
of possession and giving to the donees the same possession as she had.
Gift to Two or More Donees
absoluteness of the grant of the corpus, the house itself. This condition would be void but the gift is valid and the donee
would take an absolute interest in the house. In construing whether a gift creates an absolute interest in the corpus or a
right in only the usufruct with corpus going to a specific individual mentioned by name, the substance of the gift has to be
preferred to the form.21^112 Thus where the donor makes a gift of a house to A for his life and after the death of A to B for
life, the condition of gift over to B derogates from the absoluteness of the grant in favour of A. Since the gift is in the corpus
(house) and not in the usufruct, the gift has to be absolute. The result would be that it would be valid and absolute in favour
of A and B will not get anything.
Shia Law
The grant of a life estate in the corpus is recognised under the Shia law.22^113 Thus a gift of a house by the donor for life to
A , with a condition, that after the death of A , the house will revert to the donor, is valid. The condition of reversion is
operative and will bind the donee. Similarly, where the donor makes a gift of a house to A for his life, and on his death to B
for life and then to C absolutely, the gift in favour of A , B and C is valid.23^114
Gifts with a Condition in the Nature of a Trust
Both under the Sunni and the Shia law, conditions which are in the nature of a trust are valid if the donor does not keep
any rights with him over the corpus and the condition is in the nature of a direction with respect to utilisation of the usufruct
in favour of specific individuals named in the deed with their entitlement clearly specified.24^115 It can include a right to have
the recurring income out of the usufruct even in favour of him self (donor). The condition in these cases is in the nature of a
trust and is enforceable that way. The most important thing is that the donor does not have a right in the corpus, nor
reserves the same in favour of anyone else, but only in part of the usufruct. For example, A makes a gift of his property in
favour of B, with a condition, that out of the income of the property, he would pay Rs. 400 to him and an equal amount to
his wife till their lifetime. Here the corpus is given without any limitation to the donee, and the donor or his wife have no
rights over it. It is only the usufruct, whose utilisation is specified in favour of specific individuals with their entitlements
clearly outlined.25^116 Take another example, A makes a gift of his property to B who has a wife W and two sons S1 and S
. The gift is with a condition that out of the income coming out of the property, B is to pay 50% of this income to W for her
maintenance and out of the rest half S1, S2 and B will take in equal shares. This arrangement will continue till the life of B.
The condition is perfectly valid. As the condition is valid, the donee is under an obligation to honour it and abide by it. If he
fails to do it, the gift will not become invalid, but a cause of action will arise against him, that can be recovered with the help
of law. In the alternative the donor may also file a suit for revocation of gift provided other conditions are satisfied.26^117
Whatever is the payment, or income, it must come out of the usufruct of the gifted property, otherwise it would not be a
condition in the nature of a trust. For example, the donor makes a gift of house in favour of the donee with a stipulation that
the donee was to pay him Rs. 1000 per month. The house was not yielding any income. This would not be a condition in
the nature of a trust as the income is not to be paid out of the usufruct coming out of the property27^118 and it is in the
nature of an obligation that must be paid in all cases by the donee. Similarly if the donor reserves the benefit of the corpus
in his favour, then the condition would be invalid. For example, a donor A makes a gift to B with the condition, that A would
be entitled to reside in part of the gifted house for his life, the condition is void, as the donor is not empowered to keep any
dominion over the corpus. Similarly, where the donor puts a condition, that during his lifetime, the donee has to pay his
debts out of the usufruct of the property, the condition is valid,28^119 but if he puts a condition that should the need arise, the
donee will have to return part of the property back to the donor, so that he can repay his debts, the condition is void, as the
donor is still keeping a dominion over the gifted property (corpus).
GIFT WITH EXCHANGE (HIBA-BIL-IWAZ)
As distinguished from simple gifts, Muslim law also recognises gifts with an exchange. These gifts are called 'hiba-bil-iwaz'
and have two basic essentials:
(i) a^ bona fide^ and voluntary intention on part of the donor to make the gift and to divest himself of the
complete rights over the property and vest it in the donee;29^120 and
(ii) payment of consideration by the donee.
What is noteworthy here is that the delivery of possession of the property is not one of the essential requirements. Hiba-bil-
iwaz is therefore an important device to effect a gift of Mushaa in a property capable of being divided, which can be
lawfully done in this manner.
Consideration
Payment of consideration is one of the most important aspects of Hiba-bil-iwaz. Without consideration it will be a gift
simpliciter and would have to fulfill all the essentials of a simple gift including immediate delivery of possession.
Consideration must be actually and bona fide paid.30^121 It may be in the form of money or performance of an obligation, in
the form of return of a favour, or relinquishment of the claim to an estate or even a promise to marry, or in lieu of payment
of dower. However, considerations of love and affection, or consideration of donee being a relative is not a valid
consideration. For example, A makes a gift to B of his house or a portion of it in return of Rs. 10,000 or a gift of his land to
W , in return of her promise to marry him,31^122 or A makes a gift of his house to W , in return of or in lieu of her unpaid
dower.32^123 In these cases even if the possession is not delivered the gift is valid. In Sarifuddin v. Mohiuddin ,33^124 a
Muslim woman made a gift of her undivided share in the property in favour of her nephews in consideration of the latter
paying her Rs. 900 for her maintenance every year. The gift was a hiba bil-iwaz and was valid despite the fact that the
possession was not delivered to them. Similarly, where the donee in consideration of proper arrangement made for her
maintenance, relinquishes her claim of estate in favour of the donor, it is a valid hiba-bil-iwaz.34^125
Hiba-bil-iwaz Treated as a Sale
Hiba-bil-iwaz has all the elements of a contract of sale, as the parties must be competent to contract, there should be an
offer and an acceptance and presence of consideration is a must. Judiciary has also treated it as a sale35^126 and therefore
the basic formalities of effecting a sale specified in the Transfer of Property Act, 1882, are applicable here. Where the
consideration is more than Rs. 100 a hiba-bil-iwaz has to be effected with the help of a written, attested and registered
document.36^127
Adequacy of Consideration
Consideration can be in cash or kind, but there is no requirement of law that it should be equivalent to the market value of
the object of the gift. If the intention is bona fide it can be grossly inadequate, yet perfectly valid.37^128 Though
considerations of love and affection or nearness of relationship by itself is not a valid consideration yet these factors may
influence the adequacy of consideration. A copy of the Quran38^129 or a prayer carpet is also a valid consideration. A gift of
land at one-third its market value is valid. Similarly where property of considerable value is gifted in consideration of the
donee agreeing to maintain the donor for the rest of his life, it would be a valid hiba-bil-iwaz.
True Hiba-bil-iwaz
In an ordinary hiba-bil-iwaz, there is a donor and the donee relationship. The donor makes the gift and the consideration
comes from the donee, but the primary subject-matter of the gift comes from the donor. A true hiba-bil-iwaz is a gift where
the iwaz is in fact another independent gift in return of the first gift. This second gift is not specified in the first gift as its
consideration, but it is in fact a return in lieu of the first gift. These are therefore two distinct and independent gifts, where
the parties are same, but the donor in one is the donee in another. For example, the husband makes a gift of a necklace to
his wife and hands it over to her. She accepts it and makes a gift of a watch to him, making it clear that this was in return to
his gift to her. The differences between a hiba-bil-iwaz and a true hiba-bil-iwaz are that firstly, in the former delivery of
possession is not necessary, but in the latter, delivery of possession is necessary. Secondly, the former is revocable, but
the latter, on furnishing of the second iwaz, is irrevocable.
Hiba-ba-shart ul-iwaz
Where a gift is made with a stipulation for a return from the side of the donee, it is a simple gift to begin with, and all the
three essentials of a valid gift including the delivery of possession is necessary. However, where the stipulation in the gift is
fulfilled by the donee, it takes the character of a Hiba-ba-shartul-iwaz. This stipulation or promise that the donee is
supposed to perform, till its performance makes the gift revocable, but once it is performed, the gift becomes irrevocable.
Where the gift is of an undivided share in the property it would be invalid without delivery of possession.
REVOCATION OF GIFTS
Ordinarily, till the gift is complete, it is revocable. In other words till all the essentials of gift are complied with, it is open to
the donor to withdraw his offer. Where the possession of the property has been delivered, the gift becomes complete, but
because it is purely a voluntary transaction it can be revoked even after its completion.
Revocation of gift can be with the consent of the donee or in the absence of his consent, by a decree of the court. The right
of revocation is only with the donor and can never be exercised by his heirs.39^130
A gift which has been completed in the manner specified by law would be absolutely irrevocable in the following cases:
Ariyat
'Ariyat' is a gift of the right to enjoy the usufruct in a specific property for a specific time period and is revocable at the
pleasure of the granter. In fact it is more in the nature of a licence. It is personal in character and is neither heritable nor
transferable. It is revocable and does not confer on the grantee any right in the corpus, but only in the income coming out
of the property or the profits. In case of a simple gift, it is the transfer of property itself with all incidents of ownership of
property that is transferred.
- Sections 122-126.
- Ghulam Ahmed Sufi v. Mohammad Sadiq , AIR 1974 J&K 59.
- Hafiz Abdul Basit v. Hafiz Ahmed Mian , AIR 1973 Del 280 [LNIND 1972 DEL 224]; Khajooroonissa v. Rowshan Jehan , (1876) 2 Cal 184; Sadik Hussain v. Hashim Ali , (1916) 43 IA 212.
- Sultan Miya v. Ajibakhatoon Bibi , (1932) 59 Cal 557.
- Abdul Hye v. Mir Mohamed , (1868) 10 Cal 616.
- Hedaya , Hamilton Translation, Gracy London, 1870, p. 482; Baillie, Digest of Moohummudan Law , Part I, 1875, 515.
- Fyzee, Outlines of Muhammadan Law , 218.
- Baillie, Digest of Moohummudan Law , Part I, 1875, p. 515.
- See Kulsumunisssa v. Ahmadi Begum , AIR 1972 All 219. The case related to succession. See also Imam Sahib v. Ameer Sahib , 1955 Mad
- Kaireem Bi v. Mariam Bi , 1960 Mad 447 ; Faridunnissa v. Mukhtar Ahmed , AIR 1925 PC 204.
- Hussaina Bai v. Zohra Bai , AIR 1960 MP 60 [LNIND 1959 MP 24].
- Raja Bai v. Ismail Ahmed , 7 BHCR 27.
- See the Transfer of Property Act, 1882, s. 13.
- Ahmad-ud-din v. Illahi Bakhsh , (1912) 34 All 465; Iqbal v. Controller of Estate Duty , AIR 1964 Guj 452.
- Mullick Abdul Gaffoor v. Mulcka , (1884) 10 Cal 112.
- Mirza Abid v. Munno Bibi , AIR 1927 Oudh 261.
- There is a conflict of judicial opinion on whether a gift of a portion of future revenue would be valid or not. Bombay and Calcutta High Courts held them as void, while Madras High Court in a later case held these gifts to be valid as they are in the nature of a usufruct. See Amtul Nissa v. Mir Nurudin , (1896) 22 Bom 489; Anwar Reza v. Hachinur Reza , (1944) 1 Cal 680; Duriesh Mohindeen v. State of Madras , 1957 Mad 577.
- Yusuf Ali v. Collector of Tipperah , (1882) 9 Cal 138; Chekkone Kutti v. Ahmed , (1886) 10 Mad 196.
- See Nawazish Ali Khan v. Ali Raza Khan , (1948) 75 IA 62; wherein it was held that a power given to a legatee to appoint a successor is invalid under Muslim law.
- MT Khalid v. PM Sainabi , AIR 1981 Ker 230.
- Amjad Khan v. Ashraf Khan , AIR 1929 PC 149.
- Moqbool Alam v. Khodajia , AIR 1966 SC 1194 [LNIND 1966 SC 37].
- Mohammad Ayisha Beevi v. Samankatha , (1944) 2 Mad LJ 267.
- Kalidas Mullick v. Kanhaya Lal Pundit , (1884) 11 Cal 121; Mahomed Buksh v. Hosseni Bibi , (1888) 15 Cal 684.
- Mahomed Buksh v. Hosseni Bibi , (1888) 15 Cal 684. This case dealt not with adverse possession but of lack of delivery of possession of undivided share in the property.
- Fathima Bibi v. Bhavasa Maracair , (1979) 1 MLJ 409 [LNIND 1978 MAD 509]; Tara Prasana v. Shandi Bibi , (1922) 49 Cal 68; Abdul Kabir v. Jamila Khatoon , AIR 1951 AP 315 ; Muhar Bibi v. Maharulla Mondol , (1933) 57 Cal LJ 375.
- Ismail v. Ramji , (1899) 23 Bom 682.
- Tateef Khan v. Abdul Basifh Khan , (1984) Andh WR 72; Sultan Begum v. Ara Begum , (1933) 57 Cal LJ 459; Amjad Khan v. Ashraf Khan , (1929) 56 IA 213; Mohamed Abdul Ghani v. Fakhr Jahan Begum , (1922) 49 IA 195.
- State of Uttar Pradesh v. Sayed Abdul Jalil , MANU/SC/0402/1972, decided on 1 Feb., 1972.
- Sultan Miya v. Ajibakhatoon Bibi , (1932) 59 Cal 557.
- Azim-un-Nissa v. Dale , (1871) 6 Mad HC 455.
- Watson & Co. v. Ramichand Dutt , 28 Cal 10.
- Ratan Lal Bora v. Mohd. Nabiuddin , AIR 1984 AP 344 [LNIND 1984 AP 103], (1984) 2 Andh WR 201. See also Mahboob Sahab v. Syed Ismail , AIR 1995 SC 1205 [LNIND 1995 SC 404].
- Hussaina Bai v. Zohara Bai , AIR 1960 MP 60 [LNIND 1959 MP 24].
- Mohammad Mustafa v. Abu Bakr , MANU/SC/0357/1970, decided on 8 Dec., 1970.
- Wali Mohd v. Faqir Mohd ., AIR 1978 J&K 92; Md Hesabuddin v. Md Hesaruddin , AIR 1984 Gau 41.
- Ghulam Hussain Kututubuddin Maner v. Abdul Rashid Abdulrajak Maner , MANU /SC/2742/2000, decided on 19 July, 2000.
38. AIR 1928 PC 108.
- Ghulam Hussain Kututubuddin Maner v. Abdul Rashid Abdulrajak Maner , MANU/SC/2742/2000, decided on 19 July, 2000; see also Valia Pedikakkandi Kathesa Umma v. Pathakkalan Narayanath Kunhamu , AIR 1964 SC 275 [LNIND 1963 SC 198]; Suna Meah v. SAS Pillai , AIR 1933 Rang 155.
- Durr-ul-Mukhtar , Vol. 3, p. 104; Fatwai-I-Alamgiri , Vol. 5, pp. 239-400, quoted in Valia Pedikakkandi Kathesa Umma v. Pathakkalan Narayanath Kunhamu , AIR 1964 SC 275 [LNIND 1963 SC 198].
- Ibid.
- Hedaya , Hamilton's Translation, Gracy London, 1870, p. 484; Baillie, Digest of Mohammedan Law , 1875, p. 539.
- Durrul Mukhtar , Vol. 4, p. 512, quoted in Katheesa Umma's case.
- Hedaya , Hamilton's Translation, Gracy London, 1870, p. 484.
- Saira Bai v. SS Joshi , AIR 1960 MP 260 [LNIND 1960 MP 108]; Abu Khan v. Morian Bibi , (1974) 40 CLT 1306; Hyatuddin v. Abdul Gani , 1975 Mah LJ 345 [LNIND 1974 BOM 102].
- Baillie, Digest of Mohammedan Law , 1875, pp. 520-522.
- Baillie, Digest of Mohammedan Law , 1875, p. 508; Mulla's Principles of Mahomedan Law , 19th edn., (ed. M. Hidayatullah and Arshad Hidayatullah), 1990, p. 118.
- Valia Pedikakkandi Kathesa Umma v. Pathakkalan Narayanath Kunhamu , AIR 1964 SC 275 [LNIND 1963 SC 198].
- Abu Khan v. Moriam Bibi , (1974) 40 CLT 1306.
- Atmaram v. Girdhari Lal , 1972 Andh WR 125. See also Muhammad Mumtaz v. Zubaida Jan , (1889) 16 IA 205.
- Hafiz Abdul Basit v. Hafiz Ahmad Mian , AIR 1973 Del 280 [LNIND 1972 DEL 224].
- Maqbool Alam v. Khodaija , AIR 1966 SC 1194 [LNIND 1966 SC 37]. See also YS Chen v. Batulbai , AIR 1991 MP 90.
53. AIR 2010 SC 211 [LNIND 2009 SC 559].
- Ibid , p. 214.
- See the Indian Registration Act, 1908, s. 17(a); Abdul Rahman v. Gaya Prasad , AIR 1929 Oudh 435; Nasib Ali v. Wajed Ali, AIR 1927 Cal 197; Mohammad Hesabuddin v. Mohammad Hesaruddin , AIR 1984 Gau 41.
- Mohammad Azim v. Saadat Ali , AIR 1931 Oudh 177; Mohammad Sadiq v. Fakr Jahan , AIR 1932 PC 13.
- See the Transfer of Property Act, 1882, s. 123.
- Chhota Uddandu Sahib v. Masthan Bi , AIR 1975 AP 271 [LNIND 1974 AP 202].
- AMK Mariam Bibi v. MA Abdul Rahim , AIR 2000 NOC 21 (Mad).
- Fatmabibi v. Abdul Rehman Abdul Karim , AIR 2001 Guj 175 [LNIND 2000 GUJ 273].
92 Faridsaheb Husseinsaheb Sharikmaslat v. Ahmedsaheb Husseinsaheb Sharikmaslat , AIR 2010 Bom 100 [LNIND 2010 BOM 319]; see also Gulam Ahmad Safi v. Mohd Sidiq Dareel, AIR 1974 J&K 59; Imbichimoideenkutty v. Pathumunni Umma, AIR 1989 Ker 148 [LNIND 1988 KER 60].
93 Aqil Ahmad, Mohammadan Law , 17th edn., (ed. IA Khan) 1995, p. 179; Mulla's Principles of Mahomedan Law , 19th edn. (ed. M. Hidayatullah and A. Hidayatullah), 1990, p. 128.
94 Kasim Husain v. Sharif-un-Nissa , (1883) 5 All 285.
95 Ala Baksa v. Mahabat Ali , AIR 1935 Cal 739.
96 Fayyaz-ud-din v. Kutab-ud-din , AIR 1929 Lah 309.
97 Baillie, Digest of Moohummedan Law , Part II, 1869, p. 204.
98 (1888) ILR 15 Cal 689 (PC).
99 Aftab Hussain v. Tayebba Begum , AIR 1973 All 54; see also Said Hasan v. Shah Hasan , AIR 1947 Lah 272.
100 Ameerroonnissa v. Abadoonnissa , (1875) 15 Bom LR 67; Kairam Bi v. Mariam Bi , 1960 Mad 447 ; Aziz v. Sona Mir , AIR 1962 J&K 4.
101 Ismail v. Idrish , AIR 1974 Pat 54.
102 Natho v. Hadayat Begum , AIR 1949 Lah 238, wherein a gift of one-third share in a house in Rangoon was effected validly.
103 Ibrahim Goolam Arif v. Saiboo , (1907) 35 Cal 1.
104 AIR 1976 Bom 23 [LNIND 1974 BOM 102].
105 AIR 1936 All 473.
106 Ebrahim Alibhai v. Bai Asi , AIR 1934 Bom 21; Asan Kutty v. Mohammad Kuri Kal , 1961 Ker LT 959; Mohammad Yusuf v. Hasina Yusuf , AIR 1948 Bom 61; Kaniz Fatima v. Jai Narain , AIR 1944 Pat 334 ; Azizi v. Sona Mir , AIR 1962 J&K 4; Kalu Beg v. Gulzarbeg , AIR 1946 Nag 375.
107 Baillie, Digest of Moohummedan Law , Part II, 1869, p. 205.
108 Wahibunnisa v. Mushaj Hussain , AIR 1927 Oudh 328; however see also Nawozish Ali Khan v. Ali Raza Khan , AIR 1948 PC 134, which indicates that this condition of survivorship would be void.
109 Sadik Hussain v. Hashim Ali , (1916) 43 IA 212; Ashraf Ali v. Mahomed Ali , AIR 1947 Bom 122; Cassamally v. Currimbhoy , (1911) 36 Bom
110 Mohammed Ibrahim v. Abdul Latif , (1913) 37 Bom 447; Abdul Gafur v. Nizamuddin , (1892) 17 Bom 1; Ma Hmyin v. Chettyar , AIR 1935 Rang 318.
111 Jameela Beeviu v. Sheik Ismail , 1979 Mad 193.
112 Hazara Bai v. Mohamed Adam Sait , (1977) 1 MJL 291. See also Mundayat Vedake v. Chiru Kandan , 1971 KLJ 796; M. Ali v. State of Uttar Pradesh , (1975) 2 SCWR 511.
113 Even among the Shafe' is, (of Sunni sect) the gift of a life estate is valid. See Mohammed Ibrahim v. Abdul Latif , (1913) 37 Bom 447.
114 Siraj Husain v. Mustaf Hussain , (1921) OC 321; Bano Begum v. Mir Abed Ali , (1908) 32 Bom 172. See also Nisar Ali Khan v. Mahomed Ali Khan , AIR 1932 PC 172.
115 Mohammed v. Fakhr Jahan , AIR 1922 PC 281 ; Nawab Umjad Ally v. Mohumdee Begum , (1867) 11 MIA 517; Lali Jan v. Muhammad , (1912) 34 All 478; Zohara Khatun v. Mahaboob Bi , 1943 Mad 677 ; Anjumanara Begum v. Asif Kadar , (1955) 2 Cal 109; Tavakalbhai v. Imtiyaj Begam , (1916) 41 Bom 372.
116 See C. Duriesh Mohideen v. State of Madras , 1957 Mad 577.
117 See 'Revocation of gifts', infra.
118 Sarifuddin v. Mohiuddin , AIR 1927 Cal 808.
119 Krishna Behari v. Ahmadi , AIR 1935 Oudh 432.
120 Bashiran v. Mohammad Hussain , AIR 1941 Oudh 284; Khairunnissa v. Karamtulla , AIR 1933 Oudh 99.
121 Mehdi Hasan v. Muhammad Hasan , (1906) 28 All 439; Mohan Lal v. Mahmud , AIR 1922 All 347; Muhammad Faiz v. Ghulam Ahmad , (1881) 3 All 490.
122 Tajunnissa Bibi v. Rahmath Bibi , 1959 Mad 630 ; Ismail Beevi v. Sulaikkal Beevi , 1967 Mad 630.
123 Mohammad Esuph v. Pattamsa Ammal , (1889) 23 Mad 70.
124 AIR 1927 Cal 808.
125 Mohammad Faiz v. Ghulam Ahmad , (1881) 3 All 490.
126 Mahabir Prasad v. Mustafa Hussain , AIR 1937 PC 174 ; Ghulam Abbas v. Razia Begum , AIR 1951 All 86 [LNIND 1950 ALL 300]; Mohammad Hashim v. Amina Bai , AIR 1952 Hyd 3.
127 Gopal Das v. Sakina Bibi , AIR 1936 Lah 307; Ghulam Abbas v. Razia Begum , AIR 1951 All 86 [LNIND 1950 ALL 300]; Mohammad Usman v. Amir Mian , AIR 1949 Pat 237 ; Saburannessa v. Sabdu Shaikh , AIR 1934 Cal 693.
128 Khajooroonissa v. Rowshan Jahan , (1876) 2 Cal 184.
129 Abbas Ali v. Karam Baskh , (1909) 13 CWN 160.
130 Mahmood Khan v. Abdul Rahim , AIR 1964 Raj 250 [LNIND 1964 RAJ 66].
131 Maqbool v. Ghafur-un-nissa , (1914) 36 All 333.
132 Mulani v. Maula Baksh , AIR 1924 All 307.
133 See infra under 'Sadaqah'.
134 Abu Khan v. Mariam Bibi , (1974) 40 CLT 1306.
135 Karim Bi v. Mariam Bi , 1960 Mad 447 ; Masoon Sab v. Madan , (1973) 1 APLJ 97.
Kusum & Poonam Pradhan Saxena - Family Law/Family Law/VOLUME II/CHAPTER 15 WILLS (WASIYAT)
CHAPTER 15
WILLS (WASIYAT)
INTRODUCTION
A Will is a device or an instrument with the help of which an owner of the property makes a disposition, that is to take effect
after his death, and which by its very nature is revocable. A Will under the Indian Succession Act, 1925, which is the
general law of testamentary succession for Indians is defined as:1.
