1. This is an appeal by an assignee-decree-holder who sought to attach in execution a house in Tiruchirapalli which was claimed by the respondent, Gulsum Bibi, as having been gifted to her by her husband, Yusuf, who appears to have been a Telephone Inspector employed in Burma.
2. The learned District Judge of Tiruchirapalli confirmed the finding of the District Munsif that the house belonged to Gulsum Bibi by virtue of a valid and completed gift. This second appeal has been pending since 1949 because, it is explained notice could not be served on Gulsum Bibi despite four attempts made to serve her in Rangoon. Ultimately substituted service was effected and her present whereabouts appear to be unknown. Unfortunatley therefore this appeal has to be heard and deposed of without hearing her or anyone on her behalf.
3. The relevant facts are these. The assignee-decree-holder look an assignment of a decree obtained by Yusuf's first wife in respect of her Mahr for about Rs. 816. Gulsum Bibi is Yusuf's second, wife. After Yusuf's death Gulsum. Bibi was impleaded as his legal representative. She contested the execution petition to attach this house: but unfortunately did not go into the witness-box herself. She examined two witnesses, one R.W. 1. who wrote the gift deed, Ex. B. 1, dated 19-3-1939 and an attestor, R.W. 2. Ex. B. 1 was not produced from Gulsum Bibi's custody but from that of a third party who produced it on summons and was not himself unfortunately examined as a witness.
It is also clear from the municipal tax receipts Exs. A. 3 to A.. 7 and from a Municipal Register extract, Ex. A. 8 that no transfer of registry of this house was effected by Yusuf in the name of Gulsuin Bibi on the basis of this settlement or gift deed, Ex. B, 1. A witness examined for the decree-holder, P.W. 2 deposed that he collected rents from tenants in occupation of this house and remitted it to the judgment debtor who was living with Gulsum Bibi in Rangoon during his life-time.
The learned District Judge was fully alive to all these facts but nevertheless took the view that. Ex. B. 1 was a complete- and valid gift containing as it did a declaration that transfer of possession had been made to Gulsum Bibi. ,
3a. The courts below did not refer to a condition in Ex. B. 1 which may be translated as follows:
'Should any difficulty arise in the matter of your remaining in the family itself till the lime of my death and rendering service required for me, this settlement shall not be valid.'
4. It is essential to the validity of a gift that there should be a delivery of such possession as the subject of the gift is susceptible, and in gifts of immovable property by a husband to the wife, the mere fact that the husband continues to live in the-house or receive the rents after the date of the gift will not invalidate the gift, the presumption in such a case being that the rents are collected by the husband on behalf of the wife and not on his own account.
The learned District Judge applied these principles of Muhammadan law laid down in a number of decisions to the facts of this case. It appears to me that the vital ingredient is the delivery of possession in a case of this kind which is essential to complete and validate the gift. The present gift is not in the category of a simple gift but one with a condition reproduced 'supra'. The donor requires Gulsum Bibi to stay with him and render him service till he dies and if she failed to do so he declared the gift invalid.
It is settled Muhammadan law that 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 condition were attached. Mulla in his Muhammadan Law (13th Edn.) under Section 164, cites a number of decisions to support this settled position, but one essential requirement for such a gift being held to be complete and valid is that possession must have been delivered, for the, gift to operate and the condition being rendered void.
5. Mr. Narayanaswami Aiyar for the appellant suggested that this gift with this condition would fall into the category of a Hiba-Ba-Sharat-Ul-Iwaz, that is, a gift made with a stipulation (Shart) for a return considered by Mulla under Section 169. I do not think that this gift would fall into that category, though if it did, delivery of possession is, as emphasised by Mulla, necessary.
Ordinarily as held by the learned District Judge a declaration of delivery of possession in a registered deed would suffice to complete and validate a simple gift; but when a gift has been made with a condition of this kind it is necessary to adduce evidence at any rate of some overt act on the part of the donor to show that he did in fact deliver possession to the donee.
Far from being this the case the donor did not effect transfer of registry in his wife's name, and, what is far more important he appears to have handed over, custody of this gift deed to a third party and not to his wife making an inference justifiable that he intended to retain in his indirect possession this gift deed without allowing it to pass in his wife and to prevent her from leaving him and asserting any right to the house on the basis of Ex. B. 1 and his having delivered possession to her.
The learned. District Judge, also did not take into consideration the fact that Gulsum Bibi did not herself go into the witness box although she appears to have signed a counter to the execution petition filed on 15-10-1946 on. 23-11-1946 or her failure to examine as a witness the person from whose custody Ex. B. 1 was produced to show how he came into possession of this document. I have carefully examined these circumstances which Strongly militate against any delivery of possession of this house having been made by the husband to Gulsum Bibi.
On the other hand these circumstances rather point to the husband, after executing the gift deed, Ex. B. 1, retaining possession of the gift deed and also possession and control of the house which he purported to sell or gift with a condition annxed, to his wife, to prevent her from asserting rights over the house in bis lifetime.
On a careful consideration of the material inthis case particularly so in view of the fact thatGulsum Bibi is not represented before me, I thinkthat this appeal should be allowed and the assignee-decree-holder permitted to proceed against thishouse as belonging to the Judgment-debtor ofwhich he did not make a completed and valid giftto his wife by delivery of possession to her. Theappeal is allowed without any order as to costs.