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Fathimuthu Vs. Ghouse Ahmed Maracayar and ors.
LegalCrystal Citation : legalcrystal.com/801839
Court : Chennai
Decided On : Dec-29-1985
Reported in : (1986)1MLJ412
Appellant : Fathimuthu
Respondent : Ghouse Ahmed Maracayar and ors.
Judgement :
S. Swamikkannu, J.
1. This is a second appeal filed by the plaintiff Fathimuthu in O.S. No. 116 of 1976, on
the file of. the learned District Munsif, Chidambaram against the judgment and
decree dated 20.8.1979 in A.S.No. 100 of 1978, on the file of the Court of the learned
Subordinate Judge, Chidambaram, dismissing the appeal with costs of the contesting
respondents and confirming the judgment and decree of the trial court.
2. The suit was filed for partition and separate possession of plaintiff's half share in
the suit properties, for future mesne profits and for costs.
3. The case of the. plaintiff in brief is as follows;- One. G.M. Ghouse and his wife
originally owned the suit properties and other properties and they had executed a
Hiba on 19.3. 1931 in favour of their grand children by name Aliaudeen, Fathima Bivi,
K. Shafia Bivi, Kathija Bivi and K. Ameena Bivi who were minors then. The guardian
of the donees took possession of the properties and the gift deed was acted upon.
Under the said gift deed, the donees were given only the right to enjoy the income
from the properties and they were not given any power of alienation. As per the terms
contained in the hiba, the grand children of G.M. Ghouse have to enjoy the properties
absolutely. The donees mentioned in the hiba effected a partition among themselves
regarding the gift properties and in the said partition Shafia Bivi, who is the 6th
defendant in the suit, was allotted the properties described in the Schedule-C. The
said Shafia Bivi has got a son who is the 1st defendant in the suit, and a daughter
who is the plaintiff in the suit. The plaintiff and her brother are entitled to half share
in the properties which are given to the 6th defendant under the gift deed. Contrary
to the terms of the hiba, and the subsequent arrangements between the donees, the
6th defendant had sold almost all the properties in favour of the defendants 2 to 5.
The 6th defendant has got no right to alienate the properties and therefore the
alienation by the 6th defendant would not bind the plaintiff and the 1st defendant.
The 1st defendant has parted with his interest. Under these circumstances, the
plaintiff has come forward with the suit for partition, separate possession and mesne
profits, regarding her share in the properties.
4. In the trial court, the defendants 5 and 6 have remained ex parte.

5. Defendants 2, 3 and 5 filed a written statement adopted by defendants 7 and 8, to

the following effect:- The hiba dated 19.3.1931 is not a valid document in law. The
plaintiff has got no title over the suit properties. The suit is bad for partial partition.
In the partition which took place between the heirs of G.M. Ghouse Sahib, the 6th
defendant was allotted the properties described in the C schedule therein. The 8th
defendant was enjoying her share as an absolute owner, and she had disposed suit
item to the defendants 2 to 5 who are bona fide purchasers for value. The 5th
defendant is an unnecessary party to the suit. The plaintiff's suit is barred by
limitation. Hence the suit may be dismissed.
6. The 4th defendant filed a written statement stating that the settlement deed In
favour of the 6th defendant and others by G.M.Ghouse and his wife is not a valid one
under Mahomedan Law, that the parties were not given possession of the properties
in pursuance of the said hiba, and that Mahomedan Law does not recognise vested
estates in remainder. The alienation made by the 6th defendant is valid. Hence the
suit may be dismissed.
7. The trial Court had framed the following issues and additional issues for trial:1. Whether the alleged hiba dated 19.3.1931 is true, valid, accepted and acted upon?
2. Whether the plaintiff has got title to the suit properties?
3. Whether the suit is bad for partial partition?
4. Whether the plaintiff has got any right over the suit property during the lifetime of
the 6th defendant?
5. Whether the 5th defendant is an unnecessary party to suit?
6. Whether the suit is maintainable as it is framed?
7. Whether the suit is in time?
8. To what relief, is the plaintiff entitled?
Additional Issues:
9. Whether the settlement deed executed by Chouse Sahab and his wife is true, valid,
accepted and acted upon?
10. Whether possession was given in pursuance of the hiba?
11. Whether Mahommedan Law recognises vested estates and remainder?
12. Whether the plaintiff and the 1st defendant were born on the date of hiba?
13. Whether the gift in favour of an unborn son is valid in law?
8. On behalf of the plaintiff, P.W. 1, Mohammed Hussain was examined. Ex.A-1
registration copy of hiba deed dated 19.3.1931 executed by Mohammed Ghouse,
Asmath Bi to Allaudeen Sahib and 4 others, Ex.A-2 registration copy of partition deed

dated 25.1.1950 executed between Sheikh Allaudeen, Fathima Bi, Shafia Bi, Kathija
Bivi, Ameena Bivi and Ummugulusum Bi, Ex.A-3 office copy of notice dated 29.3.1975
issued by plaintiff's counsel to Fathima Bi, Ex.A-4 to Ex.A-6 office copy of notice dated
29.3.1975 issued by the plaintiff's counsel to 3rd defendant, 4th defendant and 5th
defendant respectively, Ex.A-7 reply notice dated 15.4.1975 issued by the counsel for
Fathima Bi to plaintiff's counsel, Ex.A-8 reply notice dated 17.4.1975 issued by the
4th defendant to plaintiff's counsel and Ex.A-9 postal acknowledgment dated 2.4.1975
signed by the 3rd defendant were marked on the side of the plaintiff,. The 5th
defendant examined himself as D.W.4. Mohammed Ibrahim Maracayar (D.W.1),
Balakrishna Chettiar (D.W.2) and Rathinasami (D.W.3) were also examined on behalf
of the defendants. Ex.B-1 registered sale deed executed by Safeya Bivi in favour of
Fathima Bi for Rs. 2,200 on 27.5.1965, Ex.B-2 registered sale deed executed by Safiya
Bivi in favour of Anusuya Ammal for Rs. 2,500 on 21.5.1969, Ex.B-3 registered
release deed dated 26.8.19975 executed by Ghouse Hameed Maracayar in favour of
Anusuya Ammal for Rs. 700, Ex.B-4 registered sale deed dated 4.6.1969 by Safiya
Bivi, in favour of Kuppammal for Rs. 3,000 and Ex.B-5 registered sale deed dated
19.5.1975 executed by Safiya Bivi in favour of Vittobai represented as guardian for
minor defendants 7 and 8 for Rs. ,8,000 were filed on behalf of the defendants.
9. The trial Court considered the Issue. No. 1 and Additional Issue Nos. 9, 10 and 11
on the basis of the oral and documentary evidence adduced by both parties
concerned in the suit and gave a finding that Ex.A-1 hiba deed dated 19.3.1931 is not
a valid document under Mahomedan Law and that therefore, the plaintiff cannot
claim any title over the suit properties. Regarding Issue No. 4 and Additional issues
12 and 13, the trial court has held that on the date of Ex.A-1, the plaintiff and the 1st
defendant were not born at all and that therefore the gift in favour of unborn children
is a void one under Mahomedan Law. Regarding Issue No. 3, the trial Court has given
a finding that the plaintiff's suit is bad for partial partition in view of the fact that
some other properties were allotted to the 6th defendant which are not added in the
suit. Regarding Issue No. 5, the trial Court has given a finding to the effect that the
5th defendant is a necessary party to the suit. Regarding Issues 6 and 7, the trial
court has given a finding to the effect that the plaintiff's suit is maintainable in law
and it is not barred by limitation as contended by the defendants. The trial court has
answered Issue No. 2 against the plaintiff holding that she is not entitled to claim any
title over the suit properties on the basis of Ex.A-2 partition deed. In the result, the
suit was dismissed. Aggrieved by the same, the plaintiff preferred A.S. No. 100 of
1978 before the lower appellate Court, namely, the Sub-Court, Chidambaram.
10. The following points were framed for determination by the lower appellate Court:
1. Whether Ex.A-1, the hiba deed dated 19.3.1931 is a true one and whether it was
acted upon by the parties?
2. Whether Ex.A-1 the hiba deed dated 19.3.1931 is a valid document under
Mahomedan Law?
3. Whether the appellant's suit in the trial court is bad for partial partition?
4. Whether the appellant and the 1st respondent can claim title to the suit properties
under Ex.A-1?
5. Whether the appellant/plaintiff is entitled for a decree as prayed for in the trial

court?
11. Under points 1, 2 and 4, the lower appellate Court held that the finding of the
trial Court that Ex. A-1 was not acted upon is an erroneous one and that Ex.A~2 and
B-2 to B-5 clearly prove that Ex.A-1 was acted upon by the parties. The lower
appellate court held that the recitals contained in Ex.A-1 clearly prove that the 6th
respondent Safia Bivi, her sisters and brothers are given only a life-estate and that
the properties mentioned in the said document should go to their heirs ultimately, and
that there is a clear condition in Ex. A-1 to the effect that the donees should not
alienate the properties during their lifetime. The gift to an unborn person is not a
valid hiba under Mahometan Law. A Mahomedan can create a life interest by a
contract. The lower appellate court also held that a Mahomedan can create a lifeestate by executing a hiba or will regarding the usufruct of the property gifted by
him. The plaintiff and the 1st defendant were not born on the date of Ex.A-1.
Therefore, Ex.A-1 is not valid so far as the heirs of the donees are concerned. As the
donees concerned in Ex.A-1 had no children on the date of the hiba, the lower
appellate Court held that they take the properties concerned in Ex.A-1 as an absolute
gift. The lower appellate court also held that the 6th defendant Safeya Bivi and other
donees mentioned in Ex.A-1 are entitled to claim the properties on the basis of Ex.A-1
and Ex.A-2 as their absolute properties and that their heirs are not entitled to claim
any title on the basis of Ex.A-1. The lower appellate court also held that Ex.A-1 is a
valid hiba so far as the 6th defendant Safeya Bivi and other donees are concerned and
that their heirs are not entitled to claim any title over the properties since they were
not born on the date of hiba. So, the lower appellate court held that Ex.A-1 hiba is
valid and that it was fully acted upon by the parties and that it would confer absolute
title only to the 6th defendant Safeya Bivi and her sisters and brother, and that the
plaintiff and the 1st defendant and the heirs of the other donees concerned in Ex.A-1
are not entitled to claim any interest over the properties mentioned in it. Hence, the
lower appellate Court found point No. 1 in favour of the plaintiff Fathimuthu, point
No. 2 partly in favour of the plaintiff and point No. 4 against the plaintiff. Under point
No. 3, the lower appellate Court held that the suit is bad for partial partition, and
found the point against the plaintiff. Under point No. 5, the lower appellate court held
that there are no sufficient reasons to interfere with the findings of the trial court.
Hence the lower appellate court held that there are no merits in the appeal and
dismissed the same with costs of the contesting respondents therein, and the
judgment and decree of the trial court were confirmed by the lower appellate court.
12. Aggrieved by the decision of the lower appellate court, the plaintiff Fathimuthu
has come forward with this second appeal. At the time of admission, the following
question of law was framed for determination in this second appeal.
Whether the view taken by the Courts below that the restriction clause, contained in
Exhibit A-1 regarding the powers of alienation of the intermediary donees, will not
affect the alienations effected by the 6th defendant, since at the time of Exhibit A-1,
the plaintiff and the first defendant who got the vested remainder after the lifetime of
the 6th defendant were not born on the date of Exhibit A-1?
13. The plaintiff and the 1st defendant are the children of the 5th defendant Safeya
Bivi. The plaintiff has come forward with the suit for partition and separate
possession of her share in the suit proper-ties on the strength of Ex. A-1 hiba deed
executed by her grandfather one G.M. Ghouse and his wife. The plaintiff contends
that her mother i.e. the 6th defendant was one of the donees under Ex.A-1, that the

6th defendant and other donees concerned in Ex.A-1 had divided the hiba properties
under the original of Ex.A-1, that her mother was allotted C Schedule in the said
partition deed, that her mother has got no power of alienation as per the terms
contained in the hiba Ex.A-1, that her mother had alienated almost all the properties
which she got under the hiba to defendants 2 to 5 and that therefore she had come
forward with the suit for partition and separate possession of her share on the
strength of Ex.A-1. On the other hand, the contesting defendants contended that
Ex.A-1 hiba was not acted upon by the parties, and that it is not a valid document
under the Mahomedan Law,
14. From the evidence of P.W. 1, father of the plaintiff, it is clear that Ex.A-1 was acted
upon and that the 6th defendant was given the suit items under Ex.A-2 partition.
Under Ex. B-2, on 21.5.1969, the 3rd defendants had purchased Item 2 of the suit
lands from the 6th defendant.
Under Ex.B-4 the 4th defendant had purchased items 3 and 4 of the suit proper- ties
from the 6th defendant on 4.6.1969. Both in Exs.B-2 and B-4, there is clear mention
about Ex.A-1, and in those documents, the 6th defendant had stated that she had got
title to the properties sold on the strength of Ex.A-1 and Ex.A-2. Under Ex.B-1, the
6th defendant had sold item No. 1 in favour of the 2nd defendant on 27.5.1965. Even
though there is no mention about Ex.A-1 in Ex.R-1, Ex.A-2 is mentioned in it. Under
Ex.B-3, the 1st defendant had released his right in the properties purchased to the
3rd defendant by executing Ex.B-3. Under Ex.P-5, the 6th defendant had sold the item
Nos. 5 to 9 concerned in the suit properties in favour of the 5th defendant. In Ex.B-5,
there is mention about Ex.A-1. Thus, from Exs.B-1 to B-4, it is clear that Ex.A-1 was
acted upon by the parties and that there was Ex.A-2 partition regarding Ex.A-1
properties between the parties. Under these circumstances, there is no substance in
the contentions of the contesting defendants that Ex.A-1 was not acted upon by the
parties. Thus, from the evidence of P.W. 1 and from Exs.B-1 to B-5, it is clear that
Ex.A-1 hiba was acted upon by the parties. A perusal of Ex.A-1 reveals that the donors
had given possession of the properties to the donees who were represented by their
guardian. Under these circumstances, the Sower appellate court held that the finding
of the trial court that Ex.A-1 was not acted upon is an erroneous one, and that Ex.B-2
to R-5 clearly prove that Ex.A-1 was acted upon by the parties.
15. Mow, let us consider the validity or otherwise, of Ex.A-1 hiba deed under
Mahomedan Law. The contention of the plaintiff, appellant herein, is that Ex.A-1 is a
valid document in law, that her mother (6th defendant) is not entitled to execute Ex.R1, R-2, B-4 and R-5 regarding the suit properties since she has got only life interest in
the suit properties as per the terms contained in Ex.A-1 hiba deed. The main
contention of the plaintiff, appellant herein, is that she and the 1st defendant Ghouse
Ahamed Maracayar are entitled to claim title over the suit properties on the strength
of Ex.A-1. On the other hand, the contesting defendants contend that Ex.A-1 is not a
valid hiba under Mohamedan Law, that the plaintiff and the 1st defendant were not at
all born on the date of Ex.A-l and that therefore the appellant herein and the 1st
defendant are not entitled to claim any benefit under Ex.A-1 since the gift in favour of
an unborn person is void under Mahomedan Law. A perusal of Ex.A-1 reveals that it is
hiba executed by one Gulam Mohammed Ghouse Sahib and Asmath Bivi, his wife, in
favour of their grandchildren, i.e. in favour of the 6th defendant, her sister and her
brother Allaudeen.
16. Now let us consider whether Ex.A-1 is a valid hiba under the Mahomedan. Law.

The relevant portion of Ex.A-1 Hiba reads as follows:

The abovementioned recitals contained in Ex.A-1 clearly prove that the 6th defendant
Safeya Bivi, her sisters and brother are given only a life estate and that the properties
mentioned in the said document should go to their heirs ultimately. There is a clear
condition in Ex.A-1 hiba deed to the effect that the donees should not alienate the
properties during their lifetime. Thus, there is a clear fetter on alienation on the part
of the donees regarding Ex.A-1 properties during their lifetime. It is contended on
behalf of the plaintiff, appellant herein, that Ex.A-1 hiba deed is a valid document
under law. On the other hand, the learned Counsel for the contesting respondents
would contend that Ex.A-1 hiba deed is not a valid document under Mahomedan Law.
Now, let us consider regarding the effect of the hiba deed Ex.A-1 under Mahomedan
Law.
17. What is meant by a Hiba or gift, is clearly stated in the book 'Principles of
Mahomedan Law by Mulla (Eighteenth Edition) at page 150 as follows;
138. Hiba or gift:- A hiba or gift is 'a transfer of property, made immediately, and
without any exchange,' by one person to another, and accepted by or on behalf of the
latter.
Whether a document is a gift deed or will, can be gathered from the recitals in the
document. Even the title given to it is not conclusive of its true nature. Therefore, the
terms conditions and recitals alone determine the nature of the disposition. They are
to be taken as a whole, Where the disposition of the right, title and interest accrues in
praesenti it cannot be treated as a will because in a will the disposition is carried into
effect after the death of the maker. When once it is clear from the recitals that the
ownership has been transferred in praesenti. absolutely it is a gift and any condition
imposed on the enjoyment of the property is invalid. The gift must be accepted and
completed by such delivery of possession as the nature of the property admits.
in Mulla's Principles of Mahomedan Law (Eighteenth Edition), regarding 'gift to
unborn persons', it is stated as follows:
141. Gift to unborn person - A gift to a person not yet in existence is void.
Provision for maintenance of donee and his male heirs;- It has been held by the Chief
Court of Oudh that a gift by one person to another of a guzara (maintenance
allowance) for the lifetime of the donee and after his death to his male heirs, is a valid
gift under the Mahomedan Law. It would, however, not be valid, if none of the male
heirs of the donee was in existence at the date of the gift.
A gift does not fail in its entirety if it is made in favour of living persons and also in
favour of unborn persons. It is void only to the extent to which interest is created in
favour of unborn persons. If the gift is made through the medium of a trust, the same
conditions must be satisfied as for an ordinary gift.
In the Outlines of Mohamedan Law' (Fourth Edition) by Asaf A.A. Fyzee, it is provided
as follows:
A man may lawfully make a gift of his property to another during his lifetime; or he
may give it away to someone after his death by will. The first is called a disposition

inter vivos: the second, a testamentary disposition. Mahommedan Law permits both
kinds of transfers; but while a disposition inter vivos is unfettered as to quantum, a
testamentary disposition is limited to one-third of the net estate. Mahomedan law
allows a man to give away the whole of his property during his lifetime; but only onethird of it can be bequeathed by Will.
The English term 'gift' is much wider than the Islamic word 'hiba'; and the two must
not be confused. The term 'gift' is generic and is applied to a large group of transfers.
The word hiba, however, is a narrow and well defined legal concept. Hiba is the
immediate and unqualified transfer of the corpus of the property without any return.
The Purr al-Mukhtar defines hiba as 'the transfer of the right of the property in the
substance (tamilik al-'ayn) by one person to another without return Ciwad). To make a
person the owner of the substance of a thing (tamilik alayn) without consideration is a
hiba' (gift) while to make him the owner of the profits only (tamilik al-manafi without
consideration is an 'ariyan'.
18. In Mahomedan Law by Syed Ameer Ali, Vol.1 (Fourth Edition) (re-printed, 1985),
at page 39, the principle of Hiba or Gift simple is mentioned as the follows:
HIBA OR GIFT SIMPLE - Among Mahomedans, the law relating to the subject of hiba
possesses special importance. The principle of exclusion which prevails in all the
schools and the absence of the right of representation, cause much hardship. For
example, if a man has three sons, one of whom dies in the lifetime of his father
leaving children, these children are excluded from the inheritance of their
grandfather by their uncles. Females under the Mahomedan Law take smaller shares
than sons. Under the Sunni Law especially, owing to the principle of agnacy (t'asib)
considerable injustice is frequently occasioned which it is often the endeavour of
owners of property to avert in their lifetime. The children of a daughter are excluded
from inheritance in favour of brother's sons. To remedy these evils, it has become
frequent among Musulman families in India, as elsewhere, to have recourse to hibas,
whereby it is not only endeavoured to correct any such injustice as I have indicated,
but oftentimes to give a larger share to one heir than the other. The lawfulness of
giving a larger share to one heir by a disposition inter vivos is specially recognised.
19. The Durr-Ul-Mukhrar, quoting the Fatawai Kazi Khan under its usual designation
of Khanieh, says--'There is no objection to being more fond of one child than another
for it is an act of the heart; similarly in the matter of gifts so long as there is no
intention of injury to the others; and if there is an intention to detract (i.e. to reduce
their shares) then he should make their shares equal, that is, give to a daughter, the
same to a son. This is according to the second (Abu Yusuf) and on this is the Fatwa.
And if a man were to give in health all his property to one child it would be operative,
but he would be incurring a sin.
20. The same rule is given in the FATAWAI ALAMGIRI:
If a man in health makes a gift to his children and desires to prefer some to others,
there is no tradition with reference to this in the ASL from our masters. But it is
stated from Abu Hanifa that he may give more to the child, who is superior to the
others in religion, but when it is not so it is reprehensible. And it is stated in AlM'Ualla from Abu Yusuf, that an unequal distribution may lawfully be made when
there is no intention of injuring (any of the children) and as much should be given to a
daughter as to a son. And on this is the Fatwa, so in the Fatawai Kazi Khan and it is

the approved doctrine according to the Zahiria.

A man in health gives the whole of his property to one child, it is lawful judicially,
though it, is sinful for so doing, according to the FATAWAI KAZI KHAN.
The same rule is given in the DURR-UL-MUKHTAR. The frequency with which HIBAS
are made in India makes it necessary that we should examine carefully the provisions
of the law on the subject.
21. 'HIBA' is defined in Mahomedan Law by Syed Ameer Ali, Vol.1 (Fourth Edition)
(re-printed, 1985), as follows:
'Definition of Hiba - In the DURR-UL-MUKHTAR, a HIBA is defined as the transfer of
the right of property in the substance (tamlik-ul-'ain) by one person to another
without consideration ('ewaz) but the absence of consideration of property or the
substance of a thing by one person to another so as to constitute the donee, the
proprietor of the subject-matter of the gift. Is; requires for its validity three
conditions: (a) a manifestation of the wish to give on the part of the donor; (b) the
acceptance of the donee, either impliedly or expressly; and (c) the taking possession
of the subject-matter of the gift by the donee either actually or constructively.
22. The Hanafi lawyers define HIBA as an act of bounty by which a right of property
is conferred in something specific without an exchange. In order to distinguish a Hiba
or gift, from a Wasiat or bequest, Ibni Kamal (the author of the Fath-Ul-Kadir) defines
it as an immediate (Fil-hal) conferment of the right of property. Similarly SIDI Khalil
(the Maliki lawyer) defines it as an act of liberality by which the proprietor bestows a
thing without the intention of receiving anything in exchange.
23. The Shiah lawyers, on the other hand, declare it to be an obligation (akd) by
which the property in a specific object is transferred immediately and unconditionally
without any exchange and free from any pious or religious purpose on the part of the
donor.
24. A gift may be made verbally or by writing. The Transfer of Property Act (IV of
1882) leaves this provision of the Mahomedan Law untouched. And the Privy Council
in the case of Kamar-Un-Nissa Bivi v. Hussaini Bibi I.L.R. (1880) A11.266, upheld a
verbal gift when it appeared to be supported by all the circumstances.
25. There is another species of donation in vogue among the Musulmans, which is
pious in its character and made in view of the future life. This is called 'SADAKAH'. It
takes its origin from the directions contained in the Koran, notably in Sura II, Verse
211, 'the goods that you give shall be known to God.' This species of gift is
irrevocable according to all the schools, but we shall deal with it in the order in which
it occurs. Technically the donor or grantor is called Wahib, the donee Mouhoob-Leh
and the subject-matter of the gift MOUHOOB.
26. It is specifically mentioned at page 63 of 'Mahomedan Law' by Syed Ameer Ali,
Vol. 1 (Fourth Edition) (re-printed, 1985) as follows:
Any person may receive a gift, without distinction of sex or the age or creed, but
under the Hanafi Law the donee must be legally in existence at the time of the gift. A
gift, therefore, to an unborn person, one not in ESSE, either actually or presumably, is

invalid.
27. A careful perusal of Ex.A-1 reveals that it is a Hiba and not a Will. As already
seen, a gift to a person not yet in existence is void under Mahomedan Law. Thus,
when we read the above definitions of HIBA, it is clear that on the date of HIBA the
donee must be alive, otherwise, the gift would be void ab initio regarding the unborn
donee. Admittedly, on the date of Ex.A-1, 6th defendant - Safeya Bivi, her sisters and
brothers were minors and they were unmarried. There is no dispute regarding the
fact that the plaintiff/appellant herein and the first defendant cannot claim title to the
suit properties on the basis of Ex.A-1, since they were not at all born at that time. It is
also relevant in this connection to note that it has been laid down in. Imam Sahib v.
Ameer Sahib (1955)1 M.L.J. 449 that a gift to a person not yet in existence is void.
Where a settlement by a Mahomedan attempts to make a gift to the male descendants
of his two daughters from generation to generation, in respect of persons not in
existence on the date of the settlement deed, the attempted gift is bad and must fail.
In this decision viz., Imam Sahib v. Ameer Sahib : AIR1955Mad621 the decision in
Mussamat Surtaj Fatima v. Syed Muhammad Jawad I.L.R. (1931) Luck. 423, was
explained and distinguished; and the decisions in Chekkonekutti v. Ahmed I.L.R.
(1887) Mad.196 and Amtu-U-Nissa Begam v. Mir Nuruddin I.L.R. (1896) 22 Bom.489,
were relied on.
28-29. It was held in Chekkonekutti v, Ahmed I.L.R. (1887) Mad.196, that the
principles of Mahomedan Law which prohibit indefinite gifts and gifts in futuro
exclude the validity of such gifts to take effect at an indefinite future time. In Amtul
Nissa v. Mir Nuruddin I.L.R. (1896) 22 Bom.489 it was held that a gift cannot be
made of anything to be produced in futuro although the means of its production may
be in the possession of the donor. A different view was taken in Musammat Surtaj
Fatima v. Syed Muhammad Jawad I.L.R. (1931) Luck. 423 wherein it is stated at
page.425:
There is nothing contrary to the terms of the Mahomedan Law in a gift by one person
to another of a Guzara for the lifetime of the latter with a continuance in favour of the
male heirs of the donee, and such a gift could be made without offending any
principle of Mahomedan Law.
Thus, we find that under Mahomedan Law, a gift by a Mahomedan in favour of the
unborn persons in future is not a valid one. In other words, a gift to an unborn person
is not a valid HIBA under Mahomedan Law.
30. The learned Counsel for the respondents herein relies upon the principles laid
down in K. Adib Begum v. S.A.B.B. Hussian (1970) 2 M.L.J. 980 for the following
propositions.
It is true that under the Muhatnmedan Law a gift to a person, who is not yet in
existence is void. But it does not follow that where a gift is made in favour of living
persons and also in favour of unborn persons the whole transaction should be struck
down as void. The gift would be void only to the extent to which interest is created in
favour of unborn persons.
For a gift to be valid under the Mahomedan Law three essentials should be satisfied
(1) declaration of gift by the donor (2) acceptance of the gift, express or implied, by
or on behalf of the donee, and (3) delivery of possession of the subject of the gift by

the donor to the donee. It is essential to the validity of a gift that the donor should
divest himself completely of all ownership and dominion over the subject of the gift.
A gift may be made through the medium of trust. The same conditions are necessary
for the validity of such a gift as those for a gift to the donee direct, with this
difference that the gift should be accepted by the trustees and possession also should
be delivered to the trustees.
Thus, where in a gift through the medium of trust there is no transfer in praesenti of
any beneficial interest in favour of the donees in the subject-matter of the gift
inasmuch as the donors have reserved to themselves the right to enjoy the entire
income during their lifetime the gift is incomplete. Hence in such a case
notwithstanding the declaration of transfer of possession in favour of the donees and
the taking possession by the donors as trustees, the gift would be invalid.
In this decision, Palaniswamy, J. observed at pages 99 and 100 as follows:. A gift to a
person, who is not in existence, is void. Vide Section 141 of the Principles of
Mahomedan Law by Mullah, 16th edition. There is no controversy about this position.
The only question is whether the gift is void in toto even to the extent of the interest
of the donees in existence or whether it is void only to the extent of the interest
created in favour of the unborn persons. In Musamat Surtaj Fatima v. Syed Muhamad
Jawad I.L.R. (1931) Luk.423, there is a casual observation to the effect that there is
nothing contrary to the terms of the Mahomedan Law in a gift by one person to
another of a Guzara for the lifetime of the latter with a continuance in favour of the
male heirs of the donees and that such a gift could be made without offending any
principle of Mahomedan law. How far this view was correct arose for consideration
before Balakrishna Aiyar, J. in Imam Sahib v. Ameer Sahib : AIR1955Mad621 . In that
case a Mahomedan executed a settlement by which he gave all his properties to his
son and directed that the son and his heirs should pay five mudis of rice to each of his
two daughters and after their lifetime to their male children. It was held that in so far
as the dispositions under the deed of settlement could be regarded as an attempt to
limit the succession to male heirs and thus to create a line of succession unknown to
Mahomedan Law the deed was bad and that in so far as the direction that five mudis
or rice should be paid to the male descendants of the daughters could be regarded as
a gift, it would be bad because it would be a gift to persons not in existence on the
date when the document was executed. The learned Judge held that the observations
in Musamat Surataj Fatima v. Syed Muham mad Jawad I.L.R. (1931) Luck. 423, was a
mere obiter, as there was no discussion of the question or examination of the
authorities. The learned Judge held that the document in that case was bad in respect
of the persons who were not in existence on the date of the document. I am in
respectful agreement with this view. On behalf of the respondents no authority was
cited to show that in a case like this, where a gift is made in favour of living persons
and also in favour unborn persons, the whole transaction should be struck down as
void. The gift has to be held to be void only to the extent to which interest is created
in favour of unborn persons. In that view, I hold that Exhibit P-l is not totally void and
that it is void only to the extent it creates an interest in favour of unborn persons.
31. The learned Counsel for the respondents contend that a life estate as known to
Engligh Law cannot be created by a HIBA whether inter vivos or by Will. In this
regard the decision of the Privy Council in Amjad Khan v. Ashraf Khan (1929) 56
I.A.213 : (1929) 57 M.L.J. 439 : 30 L.W. 91 : A.I.R. 1929 P.C. 149, is referred to by the
learned Counsel for the respondents. Dealing with this decision of the Privy Council,

in the Principles of Mahomedan Law (Eighteenth Edition) by Mulla, at page 54, the
following passage occurs:
In Amjad Khan v. Ashraf Khan (1929) 56 I.A.213 : (1929) 57 M.L.J. 439 : 30 L.W. 91 :
A.I.R.1929 P.C 49 this question was raised in an acute form. The deed described the
transaction as a gift without consideration. It recited that the donee and the heirs of
the donor had consented. By it the donor gave to his wife his entire property as to
one-third with power to alienate and 'as to the rest she shall not possess any power of
alienation but she shall remain in possession thereof for her lifetime. After death of
the donee the entire property gifted away by this document shall revert to the donor's
collaterals'. On the question whether the interest given in the one-third was an
absolute interest or was only a life interest plus a power to alienate, the Judicial
Committee took the latter view. Their Lordships decided the case by asking as a
matter of construction of the deed, what was the subject-matter of the gift? Was it
merely a life interest in the property together with a power of alienation over onethird thereof? Or was it an absolute interest in the property coupled with an
inconsistent condition? Holding on the construction of the deed that the subjectmatter of the gift was a life interest only (together with the power of alienation as to
one-third) they dismissed the appeal of the donee's heir: the gift of a life-estate was
not given the effect of an absolute estate. On the argument that a life-estate could not
be created by gift inter vivos their Lordships expressed no opinion, holding that, if
right, it would only mean that the donee took nothing by the gift a result which would
carry no benefit to her heir. It is not possible to read this decision as proceeding upon
the ground that the case was not one of HIBA pure and simple. It is direct authority
against regarding a life interest as enlarged by the doctrine which invalidates a
condition restrictive of a gift and the decision to that effect abovenoted must be
treated as overruled by it. Subsequent decisions have so interpreted the Board's
judgment.
32. Both as regards life-estates and remainders there is considerable uncertainty as
to the consequences of this decision. It does not decide that in Sunni Law a life
interest can be validly created by way of gift, but the doubt hitherto cast upon the
matter has had reference to the validity of the limit in cases of gift. The validity of the
grant was very old authority: the Hedaya discloses the tradition that the Prophet
approved of amrees just as he disapproved of rikba (e.g. if I die before you then this
house is yours). A life interest is not illegal; admittedly a Mahomedan can create such
an interest by contract.
33. In A mjad Khan v. Ashraf Khan A.I.R.1929 P.C.149- (1929) 56 I.A.213 : (1929) 57
M.L.J. 439 : 30 L.W.91 a Sunni Mahomedan of the Hanafi School executed a deed
stating that he had made a gift without consideration of his entire property to his
wife, subject to the condition that she should remain in possession of a share worth
Rs. 5,000 with full power to alienate it, and that as to the rest, worth Rs. 10,000 she
should not have power to alienate but should remain in possession for her lifetime,
and that after the donee's death the entire property gifted away should revert to
named collaterals. Upon the death of the donee her brother claimed the whole
property as her heir. He contended that the intention shown by the deed was to make
a gift of the whole property itself subject to a restrictive condition, and that under
Mahomedan Law the gift was valid, but the condition void. It was held that upon the
true construction of the deed the subject-matter of the gift was a life-estate in the
whole property together with a power to alienate a third part and that accordingly
the suit failed; it was not necessary to consider whether a gift of a life-estate was

valid in Mahomedan law, because if it was not, the suit equally failed. Thus we find
that a Mahomedan can create a life-estate by executing a Hiba or Will regarding the
usufruct of the property gifted by him.
34. The learned Counsel for the plaintiff/ appellant herein submits that a life-estate
with the vested remainder can be created and in support of this contention, the
learned Counsel for the plaintiff/appellant herein relies on the principles laid down by
the Mysore High Court in Mahaboobi v. Kempaiah A.I.R.1955 Mys. 705 wherein it is
held as follows:
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 of usufruct, leaving
ownership of the corpus unaffected except to the extent to which its enjoyment is
postponed for the duration of the limited interest.
35. The learned Counsel for the plaintiff/ appellant herein relies upon the principles
laid down in Mrs. IIayara Bai v. Mohammed Adam Suit : AIR1977Mad374 in support
of his contention that the sixth defendant Safeya Ribi and her sisters have got only
life-estate regarding Ex.A-1 properties and that the plaintiff and the first defendant
are entitled to claim the suit properties on the basis of Ex.A-1. In the said decision,
under the terms of the settlement, the donor intended to give only a life-estate to the
plaintiff. The preamble to the gift deed used the word 'absolute' but the deed was not
in favour of the plaintiff only. It was in favour of her children also, on whom absolute
rights were conferred. It was held that the fact that the preamble did not mention the
children would not make any difference. The operative clause showed only a lifeestate was given to the plaintiff, while the children were given an absolute right. The
document cannot be construed as conferring an absolute interest on the plaintiff with
a condition against alienation. If, under Mahomedan law, life-estate cannot be created
by gift, then in this case it must be held that the plaintiff got nothing under the
document. If the document in terms creates only a life-estate, there is no warrant to
construe the same as one creating an absolute estate with a condition against
alienation, on the theory that life-estates by way of gift were unknown to Mahomedan
law. If such theory holds good, under a document creating a life-estate the donee
would get nothing and not an absolute estate. It should be taken to be settled law
that if in a Mahomedan gift, a life-estate is created, it would take effect out of the
usufruct.
36. It was observed by N.S. Ramaswamy, J. in Mrs. Hayara Bai. v. Moham toed Adam
Sail : AIR1977Mad374 as follows:
In the present case there can be no doubt that the donor intended to give only a lifeinterest to the plaintiff. In the preamble of the gift deed the word 'absolute' is used
but it must be remembered that the deed is not in favour of the plaintiff only. It is in
favour of her children also, on whom absolute rights are conferred. The fact that the
preamble does not mention the children would not make any difference. The
operative clause extracted above is quite clear to show that only life-interest is given
to the plaintiff, while the children are given absolute right. I wonder how the
document can be construed as conferring an absolute interest on the plaintiff with a
condition against alienation. If under Mahomedan Law life-estate cannot be created
by gift (as contended on behalf of the plaintiff) then in this case it must be held that
the plaintiff got nothing under the document, as pointed by the Privy Council in

Amjad Khan v. Ashraf Khan and Ors. (1929) 56 I.A. 213 : (1929) 57 M.L.J. 439 :
A.I.R.1929 P.C. 149 referred to above, if the document in terms created only a lifeestate, there is no warrant to construe the same as one creating an absolute estate
with a condition against alienation, on the theory that life estates by way of gift are
unknown to Mahomedan Law. If such theory holds good, under a document creating a
life-estate the donee would get nothing and not an absolute estate.
It should be taken to be settled law that if in a Mahomedan gift, life- estate is created,
it would take effect out of the usufruct.
Relying upon the abovementioned principles, the learned Counsel for the
plaintiff/appellant contends that the 6th defendant-Safeya Bivi has got only life-estate
on the basis of Ex.A-1, and that therefore, she is not entitled to sell the properties
under Exs.B-1, B-2, B-4 and B-5. On the other hand, the learned Counsel for the
respondents contends that the above principles laid down are not applicable to the
facts of this case in view of the fact that the plaintiff/appellant herein and the first
defendant were not at all born on the date of Ex.A-1.
37. In support of this contention that the gift of a life-interest by a Mahomedan is a
valid one under law, the learned Counsel for the plaintiff/appellant herein relies upon
the principles laid down by a Full Bench of the Bombay High Court in Bai. Saroobai v.
Hussain Sow Ji : AIR1936Bom330 . It was held in that decision that under Sunni
Mahomedan law a gift of a life-interest is valid; and it does not become automatically
enlarged into a gift of the corpus of the property absolutely. The learned Counsel for
the respondents submits that the respondents are not disputing the correctness of the
principles laid down in the decisions cited by the learned Counsel for the plaintiff
appellant herein, and that their only objection is that under Ex.A-1, the plaintiff and
the first defendant cannot claim any valid title since they were not at all born on the
date of Hiba, and that the 6th defendant, her sisters and brothers can ignore the
restrictions on alienation contained in Ex.A-1. In short, the learned Counsel for the
respondents contended that Ex.A-1 is a valid Hiba so far as the 6th defendant and her
brother and sisters are concerned, that they derived absolute title under Ex.A-1
inspite of the restriction on alienees, and that they are entitled to dispose o'f their
shares as they liked under law. The learned Counsel for the defendants/respondents
further contends that the 6th defendant and other donees mentioned in Ex.A-1 are
entitled to deal with their properties as they liked since they would be deemed as the
absolute owners of their shares inspite of the restrictive clause contained in Ex.A-1
since, such restriction is a void one under Mahomedan Law and that the 6th
defendant and other donees can create Ex.A-1 as their absolute Hiba in their favour.
As already seen, the plaintiff/appellant and the first defendant were not born on the
date of Hiba. Therefore, we find that Ex.A-1 is not valid so far as the heirs of the
donees are concerned.
38. In the 'Principles of Mahomedan Law' by Mulla (Eighteenth Edition) the principles
relating to gift with a condition are dealt with at page 175, and they are as follows:
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.
39, Admittedly, Ex.A-1 is a hiba in favour of the 6th defendant-Safeya Bivi, her sisters
and brothers with the condition that they should not alienate the same during their

life-time and that they are only to get the properties ultimately. As the donees
concerned in Ex.A-1 had no children on the date of hiba, we hold that they take the
properties concerned in Ex.A-1 as an absolute gift in view of the principle mentioned
above, even though there is a restrictive clause.
40. I am definitely of the opinion that Ex.A-1 is an invalid gift in favour of the 6th
defendant and others, in view of the principle governing the Mahomedan Law of 'Gift
to two or more donees.' In the 'Principles of Mahomedan Law' by Mulla (Eighteenth
Edition), 'gift to two or more donees' is dealt with at page 172, which is as follows:
Gift to two or more donees:- A gift of property which is capable of division to two or
more persons without specifying their shares or without dividing it is invalid, but it
may be rendered valid if separate possession is taken by each donee of the portion of
the property given to him or if there is a subsequent arrangement between all the
donees with regard to the possession of the property gifted. This rule does not apply
to the case mentioned in the third Exception to Section 160, nor, it is conceived, to
the cases mentioned in the other Exceptions.
Even though Ex.A-1 violates the conditions laid down in the abovementioned Section
161, we hold that the 6th defendant and the other donees have got valid title to their
properties in view of the subsequent partition contained in Ex.A-2. Thus, by executing
Ex.A-2, the 6th defendant and other donees, make Ex.A-1 a valid document under
Mahomedan Law. For the reasons stated above, we hold that the 6th defendant and
other donees mentioned in Ex.A-1 are entitled to claim the properties on the basis of
Ex.A-1 entitled to claim the properties and that their heirs are not entitled to claim
any title on the basis of Ex.A-1. For the reasons stated above, we hold that Ex.A-1 is a
valid Hiba so far as the 6th defendant and other donees are concerned, and that their
heirs are not entitled to claim any title over the properties since they were not born
on the date of hiba. We further hold that
Ex.A-1 hiba deed is a true and valid one under Mahomedan Law, that it was fully
acted upon by the parties, and that it would confer absolute title only on 6th
defendant-Safeya Bivi, her sisters and brothers only, and that the plaintiff/appellant
herein and the first defendant and the heirs of the other donees concerned in Ex.A-1
are not entitled to claim any title over the properties mentioned in it. The
plaintiff/appellant claims relief regarding the properties concerned in the suit only,
and that she has not asked for any relief regarding the other properties which fell to
the share of the 6th defendant under Ex.A-2. As this is a suit for general partition, we
find that all the properties for which the 6th defendant is entitled under Ex.A-2 should
be added in the suit. So, the suit is bad for partial partition. We further hold that the
plaintiff/appellant is not entitled to the decree for partition and separate possession
as prayed for in O.S. No. 116 of 1976 on the file of the court of the learned District
Munsif, Chidambaram, in view of the fact that she and the first defendant are not
entitled to claim title over the suit properties on the basis of Ex.A-1. Thus, the
concurrent findings arrived at by both the courts below cannot be disturbed.
41. Hence the second appeal is dismissed. Under the circumstances, there is no order
as to costs.
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