Future gift not permitted in Mohammedan Law

Two of his sons, Azeemshah and Raheman Shah Khan had 2/8th share each and four daughters had 1/8th share each in these properties

S Shyam Prasad | NT

Bengaluru: A Division Bench of the High Court of Karnataka has said that a future gift is not permitted according to Mulla’s Mohammedan Law. If a father chose to live in the same house, which he has gifted to his sons after his death “the gift to that extent did not come into effect at all.”

Recording the submission of the advocate for the respondents in an appeal, a division bench of the HC said, “Para 152 of the Mulla’s Mohammedan Law where it is clearly stated that if the donor is in actual possession of the property, the gift does not become complete unless doner physically departs from the premises with his goods and chattels and the donee formally enters into possession. That means the donor must deliver the physical possession to the donee.

However, if the donee happens to be the son or daughter of the donor and if they were living together at the time of the gift, inference as to the delivery of possession under hiba (gift) may be drawn and it is permitted.” However, in this case one of the properties was retained by the father.

“It is clearly recited that he and his wife could live in the said property till their lifetime and the gift of that property to his sons would come into effect after their death. That means as far as item no.3 of schedule-A is concerned, it is a future gift which is not permitted according to Section 162 of the Mulla’s Mohammedan Law,” the HC said. Habib Shah Khan from Bidar had three properties.

After his death in 1988, his children succeeded to the properties as tenants in common. Two of his sons, Azeemshah and Raheman Shah Khan had 2/8th share each and four daughters had 1/8th share each in these properties. When Azeemshah did not heed to the request of his other brother and sisters for partition they approached the civil court seeking partition and separate possession.

Azeemshah claimed that his father made a gift deed in 1979 long before his death. According to it, he had gifted the first property to him, the second property to his brother and had said that third property would be divided between the two brothers after the death of the father.

The Trial Court, however, found no proof for the oral partition that took place in 1979 and ruled that the two brothers were entitled for 2/4th share and the four daughters were entitled for 1/8th share of the properties.

Azeemshah had challenged this before the High Court. The division bench of Justice Sreenivas Harish Kumar and Justice TG Shivashankare Gowda gave their judgment recently. The appeal filed by Azeemshah was dismissed by the bench stating, “we do not find any infirmity in the judgment of the trial court.”