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KAMRAN ALI KHAN versus VANEEZA UMERAN

ift Gift - Conditional Gift - Scope - Donor Gift money to be used solely for charitable purpose - Effect - Gift was an unwarranted contract and was not enforceable by law - only by offer and acceptance No contract was fulfilled - if the occupation was transferred to the DD then the gift would be considered complete possession The actual examination of the delivery of the occupation was to see if the donor or the defendant had benefited from the property - without the gift of possession possession. Will Not Be Completed - Donor had unlimited right to cancel custody before delivery, and no later - granted to the court Had to say that the gift belonged to the corpse or to usurpers - if the gift was to the corpus, any circumstance that has received absolute dominance over the subject of the gift would be considered invalid. In the case of a corporate 'or' corporate 'property, the donor should, by any suitable meter, give possession of the' corpus' of the property to the father. The customary transfer of all powers and the right to own all property rights must be abrogated - where the gift was subjected to a condition that could be withdrawn altogether, the gift would be valid. Void and the gift shall also have its effect as if no condition is attached ?? Circumstances preventing or restricting the act of separating the practitioner will not affect the gift in favor of the defendant. The gift was annexed to 9 with absolute and unlimited right to the property. The gift of the property to the donor after the possession of the said property is handed over to him and his possession.

PLD 2017 Sindh 105

Before Nadeem Akhtar, J

KAMRAN ALI KHAN—Plaintiff

versus

VANEEZA UMERAN and 9 others—

Defendants Suit No. 1544 of 2013, decided on 19th September, 2016.

(a) Islamic law

—Gift—Conditional gift—Scope—Donor gifted amount solely for using towards charitable purpose—Effect—Gift was a contract without consideration and were not enforceable in law—Only offer and acceptance would not complete a contract—If possession was transferred to the donee then gift would be deemed complete—Real test of delivery of possession was to see whether donor or the donee had reaped benefit from the property—Gift would not be complete without delivery of possession—Donor had unrestricted right to revoke gift before the delivery of possession and not thereafter—Court had to see whether gift was of the corpus or the usufruct—If gift was of the corpus then any condition which had derogated from absolute dominion over the subject of gift would be rejected as repugnant—Subject of gift might be either ‘corporeal’ or ‘incorporeal’—Donor in case of ‘corporeal’ property must deliver possession of the ‘corpus’ of the property to the donee by any appropriate method of transferring all the control and he must divest himself of all the rights in the property in favour of donee—Where gift was made subject to a condition which would derogate it from completeness then gift would be valid but condition would be void and gift would take effect as if there was no condition attached to it—Conditions restraining or restricting the power of alienation of the donee would have no effect on the gift—Gift in favour of defendant was of the ‘corpus9 of the property with absolute and unlimited right of ownership over the said property—Donor after delivering possession and control thereof to the donee divested himself of all the rights in the gifted property—Whether condition alleged by the donor in the gift was valid or otherwise was to see if the alleged condition was repugnant to the gift or derogatory to its completeness and absolute dominion over its subject or absolute conveyance of the gifted property—Donee was not allowed to use the gifted amount for any purpose other than charitable and social welfare purposes—Said condition had restricted and restrained the absolute and unlimited right of ownership and dominion of donee over the ‘corpus’ of the gifted property—No such condition after delivering possession and control of the gifted property could be imposed by the donor as he had completely divested himself of all the rights therein—Alleged condition was null, void and ineffective and gift was to be treated as if no condition was attached to it—Gifted amount was transferred to the donee by the donor and the gift of ‘corpus’ of property was completed in all respects—Donor had divested himself of all the rights in the property and donee had become sole and lawful owner of the gifted amount having absolute right therein to alienate-—Donor did not have any legal character or right with regard to gifted amount, [pp. 115, 116, 117, 119, 120] B, D, E, F, G, I, J, K & L

Said Akbar and others v. Mst. Kakai, PLD 1975 SC 377; Mir Zaman Khan through legal heirs v. Ajaib Sultan and 9 others 1994 CLC 991; Mst. Khan Bibi v. Mst. Safia Begum and others PLD 1969 Lah. 338; Bahadur v. Jan Muhammad PLD 1960 (W.P.) Kar. 745; St. John Ambulance Association Pakistan v. Pakistan Red Cross Society and

another 1988 CLC 186; Muhammad Yasin and another v. Dost Muhammade through legal heirs and another PLD 2002 SC 71; Imam Din and 4 others v. Bashir Ahmed and 10 others PLD 2005 SC 418; Unair Ali Khan and others v. Faiz Rasool and others PLD 2013 SC 190; Muhammad Mehrban v. Sadruddin and another 1995 CLC 1541 and Zawar Hussain v. Abid Hussain Qureshi 1994 MLD 2251 ref.

bdul Hameed and 23 others v. Muhammad Mohiyuddin

Siddique Raja and 3 others, PLD 1997 SC 730; Muhammad Nawaz and others v. Muhammad Khan and others 2005 SCMR 710; Ghulam Hussain Meherally v. Mst. Sirin Bai, PLD 1966 (W.P.) Kar. 608; Sh. Fateh Muhammad v. Muhammad Admit and others PLD 2007 SC 460; Zulfiqar and others v. Shahadat Khan PLD 2007 SC 582 and Malik Muhammad. Faisal and another v. State Life Insurance Corporation through Chairman and 2 others 2008 SCMR 456 rel.

Thakur Raghunath Ji Maharaj and another v. Ramesh Chandra AIR 2001 SC 2340 distinguished.

(b) Islamic law—

—Gift—-Revocation of—Scope, [p. 115] C

Hedaya and Muhammadan Law by D.F. Mullah ref.

(c) Islamic law—

—Gift—Valid gift—Requisites, [p. 115] B

(d) Islamic law—

—Gift—Essentials—Essentials of valid gift were declaration of gift by donor; acceptance by donee and delivery of possession by the donor.

The requisites of a valid gift are parties, subject, extent and fÓrm;alities or mode of gift. The parties to a gift transaction are the donor who makes the gift and the donee who accepts and takes something as gift. The donor must have absolute title in the subject of the gift. The subject of a valid gift can be anything which can be legally owned or possessed, and over which dominion or right of property may be exercised, or anything which can be reduced to possession, or anything which exists either as a specific entity or as an enforceable right. The act of making a gift must fulfill three conditions which are commonly known as essentials of a valid gift ; namely, a declaration by the donor, delivery of possession by the donor, and acceptance by the donee. The real test of the delivery of possession is to see whether the donor or the donee reaps benefit from the property ; if the donor, the possession cannot be deemed to be a transfer, and if the donee, possession is transferred and the gift is complete. The reason why delivery of possession has been made the most essential requirement of a valid gift is that gift is a contract without consideration and contracts without, consideration are not enforceable in law. As such, like other contracts, only offer and acceptance will not complete a contract of gift. It is because of this reason that the delivery of possession has been made essential. Under Islamic Law, gift is not complete without delivery of possession, hence the donor has unrestricted right to revoke it before the delivery of possession and not thereafter, [p. 115] B

(e) Pleadings—

—Parties were bound by their pleadings, [p. 118] H

(f) Islamic law—

—Gift—Meaning—[p. 115] A

Hedaya by Charles Hamilton and Section 138 of the Principles of Muhammadan Law by D.F.Mulla ref.

(g) Words and phrases—

—*Corpus’—Meaning—‘Corpus’ was the absolute right of ownership over the property which was heritable, unrestricted and unlimited. Ip. 116] D

(h) Words and phrases—

— ‘Usufruct’—Meaning—‘Usufruct ’ was the right of a person to use and enjoy the property which right would be limited and not heritable, [p. 116] D

(i) Words arid phrases—

— ‘Corporeal’—Meaning—‘Corporeal’ property was one which had physical existence and could be seen and touched. [p. 116] D

(j) Words and phrases—

‘Incorporeal’—Meaning—‘Incorporeal’ property was one which had no physical existence, [p. 116] D

Abdul Sattar Pirzada along with Umair Ali Qazi tor Plaintiff.

Salahuddin Ahmed for Defendant No.l.

Dr. Muhammad Farogh Naseem (present on 18-12-2015) for Defendant No.2.

Muhammad Khalid Hayat (Present on 6-10-2015, 20-10-2015, 8-12-2015 and 27-6-2016) for Defendant No.3.

Defendant No.4 called absent.

Muhammad Muzaffar (Present on 18-12-2015) for Defendant

No.5.

Defendant No.6 called absent.

Defendants Nos. 7 to 9 called absent.

Salahuddin Ahmed for Defendant No. 10.

Dates of hearing: 6th, 20th October, 8th, 18th December, 2015, 3rd and 27th June, 2016.

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