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Bava Saib and anr. Vs. Mahomed - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Judge
Reported in(1896)ILR19Mad343
AppellantBava Saib and anr.
RespondentMahomed
Cases Referred and Ameeroonissa Khatoon v. Abedoonissa Khatoon L.R.
Excerpt:
muhammadan law - hibbat--incomplete gift. - .....and unequivocal and the intention of the donor must be demonstrated by his entire relinquishment of the thing given, and the gift is null and void where he continues to exercise any act of ownership over it.2. where, as in this case, a house is the subject of the gift, if it continues to be occupied by the giver, there is no complete gift, (see case xxii at page 231 of macnaughten's precedents, 4th edition.)3. the only exceptions are where the house gifted is given by a husband to a wife, or by a father or guardian to his minor child or ward (vide macnaughten's principles of muhammadan law, 4th edition, chapter v, page 51, and ameeroonissa khatoon v. abedoonissa khatoon l.r. 2 indap 104 . in this case the donee is not shown to come within the exceptions, and we must, therefore,.....
Judgment:

1. The rule of Muhammadan law in regard to hibbat is that the gift must not be implied. It must be express and unequivocal and the intention of the donor must be demonstrated by his entire relinquishment of the thing given, and the gift is null and void where he continues to exercise any act of ownership over it.

2. Where, as in this case, a house is the subject of the gift, if it continues to be occupied by the giver, there is no complete gift, (See case xxii at page 231 of MacNaughten's Precedents, 4th edition.)

3. The only exceptions are where the house gifted is given by a husband to a wife, or by a father or guardian to his minor child or ward (vide MacNaughten's Principles of Muhammadan law, 4th edition, chapter v, page 51, and Ameeroonissa Khatoon v. Abedoonissa Khatoon L.R. 2 IndAp 104 . In this case the donee is not shown to come within the exceptions, and we must, therefore, hold that the District Judge was wrong in finding the gift was valid.

4. We accordingly reverse the decree of the Lower Appellate Court and restore that of the Court of First Instance. The respondents must pay the appellant's costs in this and the Lower Appellate Court.


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