This article is written by Harshit Kumar. This is a detailed analysis of the case of Hayatuddin vs. Abdul Gani and Ors. (1976). The case discusses the validity of a gift (mushaa) of an undivided share of a property that is divisible. The article discusses the factors that were involved in the case that make a gift of mushaa valid. There is further discussion on the doctrine of res judicata and what made the Bombay High Court decide that the case didn’t constitute res judicata. Lastly, it gives a detailed analysis of the major principles that were highlighted in this case.  

Introduction

As per Muslim Law, a person can lawfully gift his property to another person during his lifetime or may transfer it through a will that takes effect after his death. The first instance is known as disposition inter vivos and the second instance is known as testamentary disposition. A person can give away his complete property during his lifetime, whereas, through will only ⅓ of it can be bequeathed. The literal meaning of ‘hiba’ or simple gift inter vivos is ’the donation of a thing from which the donee may derive benefit’. In a technical sense, it can be defined as “unconditional transfer of property, made immediately and without exchange, by one person to the other and accepted by or on behalf of the latter ” (defined under Hedaya). Hiba, in India, is understood as equivalent to a gift and both imply the transfer of property without consideration. However, gifts have a broader connotation than hiba.

Doctrine of Mushaa (Hiba-bil-Mushaa) is a type of gift made of an undivided property. This doctrine is accepted by the two schools of Muslim Law, which are Shafei and Ithna Asharia Shia. According to them, the gift of undivided property can be validly made; in such a case, the donor must give possession of the property to the donee. As per Hidaya, a gift of a part of a thing that can be divided is not valid until and unless that part is divided off, but a gift of an undivided property is valid.         

The case of Hayatuddin vs. Abdul Gani and Ors. (1976) deals with the validity of a gift deed of an undivided share. The case was brought by Hayatuddin (the petitioner) seeking the declaration of the gift deed, which was executed by the previous owner in his favour. The court found that the share of the Makboolbi (the previous owner) was undivided. But the court further ruled that the gift is valid because it can be divided later. The court observed that the gift can be irregular or imperfect but not void. What brought the court to this conclusion will be discussed in further detail.     

Facts of the case 

Lalmiya died in 1948, leaving behind his house property. He had two wives named Makboolbi and Rashidbi, and a sister named Amanbi. All three got their shares in the house property after Lalmiya’s death, Amanbi got 12 annas, Makboolbi and Rashidbi got 2 annas each. 

Later, on 10/06/1952, a gift deed was executed by Rashidbi and Amnabi (donors), gifting their house property worth Rs 1000/- to Hayatuddin (donee), this was an undivided house share. The gift deed mentioned that Makboolbi’s share had already been separated and given to her. It also mentioned that the possession of the house property was handed over to Hayatuddin immediately after the execution of the deed, and he was declared the owner of the complete share and had full rights to use the property as he wanted. 

Amnabi, Rashidbi and Hayatuddin filed a civil suit in 1955 contending to declare Hayatuddin the owner of the gifted property and praying for the separation of the property. The main defendant in this suit was Makboolbi, who contended that this gift deed was not binding on her 2 annas share. Mahaboolbi, who also claimed to be the widow of Lalmiya, also contested the suit as a defendant. The Court in January 1956 found that there was no partition before the gift; the gift of a portion of the property was valid, but it did not bind on the 2 annas property of Makboolbi. The Court passed a decree directing the partition of the property and separation of the 7/8th share, subject to the payment of the dower debt to Makboolbi. The claim of Mahboolbi as the widow of Lalmiya was rejected. 

No relief was granted to Hayatuddin; therefore, another suit was filed by Rashidbi and Hayatuddin with a prayer to declare Hayatuddin the owner of the gifter property. It was contended that he had been in possession of the gifted property since the date of the gift deed and had also introduced tenants. The defendant, Amnabi, contended that Haytuddin’s contention was rejected by the previous court and that the gift deed was void. She contended that the judgement of the previous court constituted res judicata. The Trial Court, rejecting the plea of Amnabi, observed that the gift deed was valid and Hiyatuddin was the exclusive owner of the gifted property. It was also observed that the judgement of the previous court did not constitute res judicata and Amnabi did not hold any right to that property. 

The case was taken to the lower appellate court. The Court set aside the Trial Court’s decision and questioned the validity of the gift deed. It was observed that Hayatuddin had not taken physical possession of the gifted property at the time it was gifted to him and since the property was not divided at that time, he does not have ownership of a part of the property. However, the Court did consider that the decree of the Court passed in 1955 did not constitute res judicata.    

This case was then taken as an appeal to the Bombay High Court, challenging the decision of the lower appellate court.   

Issues raised in Hayatuddin vs. Abdul Gani and Ors. (1976)

There were three main issues raised, which are listed as follows:

• Whether the gift of 7/8th undivided share was valid even though the appellant (Hayatuddin) had no physical possession after the execution of the gift deed and the property was undivided during the time of the execution of the gift deed in 1952?
• Whether the decree passed by the court in 1955 operated as res judicata against the suit of Hayatuddin, even though the validity of the gift was not directly decided then?
• Whether it was required in the 1955 suit to find the validity of the gift to grant relief to the plaintiffs of the 1955 suit (Rashidbi, Aminabi and Hayatuddin) against the defendant of the 1955 suit (Makboolbi)? 

Arguments of the parties

Appellant 

• The gift of 7/8th undivided share was valid even though the appellant (Hatyatuddin) had no physical possession of the gifted property and even though it was undivided after and during the execution of the gift deed.
• The decree passed by the court in 1955 did not constitute res judicata because the validity of the gift deed was not discussed by the court in that case.
• There was no requirement for deciding the validity of the gift in the 1955 suit to grant relief to the plaintiffs of 1955 suit (Rashidbi, Aminabi and Hayatuddin) against the defendant of 1955 suit (Makboolbi). 

Respondent  

• The gift of 7/8th undivided share was invalid because the appellant (Hatyatuddin) had no physical possession of the gifted property and also because it was undivided after and during the execution of the gift deed.
• The decree passed by the court in 1955 constitutes res judicata because this issue of the validity of the deed was already discussed by that trial court. 
• It was necessary to decide the validity of the gift in the 1955 suit to grant relief to the plaintiffs of 1955 suit (Rashidbi, Aminabi and Hayatuddin) against the defendant of 1955 suit (Makboolbi). 

Laws/concepts involved in this case

Mushaa (Undivided Share)  

‘Mushaa’ is an Arabic word derived from ‘saayu’ which means “undivided share in a property”. Under Islamic law, mushaa refers to an undivided share of a joint or co-owned property. Under this, even though there has not been any physical partition or division of the property, the owner of that property has an undivided interest in the complete property.  

This case discusses the validity of the gift of mushaa made by Rashidbi and Amnabi to Hayatuddin, even though the property was not divided or partitioned during the execution of the gift deed but was divisible.   

Partition and possession of undivided share 

As per Islamic law, the gift of an undivided share (mushaa) of a divisible property is irregular (fasid) and not void (batil). For such a gift to become valid, the property must be partitioned and the possession of that property must be given to the donee. However, if the property is indivisible, the gift will remain valid and not irregular. 

This was discussed in this case to decide the validity of the gift of mushaa.

Res Judicata  

The concept of res judicata is discussed under Section 11 of the Code of Civil Procedure 1908. This means that a case cannot be re-litigated for any matter that has already been decided by a competent court.

Explanation IV of Section 11 explains that any matter that might or would have been made a ground of attack or defence in a former suit, that matter will directly or subsequently become a matter of issue in the current suit. This explains that if any matter that could have been an issue in the previous case but was not raised or discussed, then that matter will be  treated as if it was already discussed and decided in the previous case. 

In this case, the defendant party (Amnabi) was contending that the matter constituted res judicata as it was already decided in the earlier suit by the trial court. The Court rejected the contention and decided the case did not constitute res judicata. 

Relevant case laws referred in the case

The Bombay High Court referred to two important cases:

• Hamid Ullah vs. Ahmad Ullah (1936): The case of Hamid Ullah vs. Ahmad Ullah (1936) revolves around the validity of a gift deed executed by the donor, who was not in physical but constructive possession of the property, which consisted of six houses and three parcels of land. The gift deed was executed by the donor, who said that she had proprietary possession of the property and she was transferring the same possession to the donee and he has the complete right to transfer the property as and when he wants. The gift was held to be valid by the court, reason being that the donor took every possible step to transfer possession to the donee and the property was then under the possession of the donee.   
• Sheikh Mohammad Mumtaz Ahmad vs. Zubaida Jan (1889): The case of Sheikh Mohammad Mumtaz Ahmad vs. Zubaida Jan (1889) revolves around the validity of the gift of an undivided share (mushaa) in a property. Sir Barnes Peacock spoke on behalf of the privy council and observed that the authorities related to the gift of mushaa have been collected and commented upon in the Tagore Lectures 1884 by Sayed Ameer Ali. Those authorities referred to show that the possession taken under the invalid mushaa transfers the property according to the doctrine of both Shia and Sunni schools. It was also observed that the doctrine related to the invalidity of the gift of mushaa is completely unadaptable to a progressive society and ought to be confined within the strict rules.        

Judgement in Hayatuddin vs. Abdul Gani and Ors. (1976)

The Court decided that:

• The appellant (Hayatuddin) was already residing in a part of the property when the gift deed was executed and there were tenants residing in the property who were told that Rashidbi and Amnabi had made Hayatuddin the owner of the house and that all the rents were to be paid to him. Also, in the gift deed, it was declared that possession was given to the donee and that was verbally intimidated to tenants. This showed that the donors did everything possible to make the gift effective; therefore, the gift of the 7/8th undivided share was valid despite the lack of prior partition.
• The 1955 suit had not discussed and decided on the validity of the gift deed; therefore, the issue was not re-discussed; hence, the case does not constitute res judicata.
• In the 1955 suit, a finding on the validity of the gift deed was not necessary to provide relief to the appellant and the defendants (who were plaintiffs in that suit, Amnabi, Rashidbi and Hayatuddin) because there was no conflict of interest between the parties.   
• The appeal of Hayatuddin was allowed.

Rationale behind this judgement

• The decision of the Court on the validity of the gift deed on the undivided share of a property was made referring to the cases of Hamid Ullah vs. Ahmad Ullah (1936) and  Sheikh Mohammad Mumtaz Ahmad vs. Zubaida Jan (1889).
• The decision of the Court on declaring the case was not constituting res judicata and that a finding of the validity of the gift deed was not necessary to provide relief to the appellant and the defendants was made relying on the provision of Explanation IV of Section 11 of Code of Civil Procedure 1908.

Analysis of the case 

The case of Hayatuddin vs. Abdul Gani and Ors. (1976) discussed various important aspects, which are as follows:

Validity of the gift of undivided share (mushaa) 

Relying on the Islamic jurisprudence, which explains that the gift of an undivided share (mushaa) of a divisible property is irregular (fasid) and not void (batil) and to make such gift valid, the property should be divided and the possession must be completely transferred to the donee by taking every possible step, the Court came to the conclusion that donor (Amnabi and Rashidbi) took every possible step to transfer the possession of the property to the donee (Hayatuddin) and there the gift was valid. 

Res Judicata 

The Court in this case observed the elements required to make a case fall under the doctrine of res judicata, which were that the validity of the gift deed was getting re-discussed was missing from the current case. The Court observed that in the suit of 1955, this was not discussed as an issue, therefore, the case didn’t constitute res judicata.

No conflict of interest 

The Court didn’t find any conflict of interest between the parties in the case; therefore, the decision on the validity of the gift deed was not required to grant relief to the defendant and the plaintiff (who were plaintiffs in the 1955 suit).

Emphasis on the intention of donors 

The Court observed and considered every possible step taken by the donors (Rashidbi and Amnabi) to transfer the possession of the gifted property to the donee (Hayatuddin) and, therefore, concluded that the gift was valid and the possession was completely in the hands of the donee.   

Conclusion

This case shows that the Bombay High Court took a flexible and practical approach in upholding the validity of the gift deed based on the evidence of the actions of the donors and in transferring the possession of the gifted property, considering the principles of Islamic jurisprudence, and also rejected the argument of res judicata. This showed that the laws can be interpreted in a way that may not be strictly doctrinal.

Frequently Asked Questions (FAQs)

What is Hidaya?

Hidaya is an Arabic word that means “guidance.” As per the Islamic lexicographer, Imam Raghib Al-Isphani means to show the way or lead to goals in a gentle and kind way. Hidaya is like a guidebook that guides people to the right path. It consists of all the aspects of Muslim law, which cover rituals, family law, personal conduct and more. It is an influential text that shapes legal practice and principles. 

What are Shafei and Ithna Asaria Shia schools? 

Shafei is one of the four major Sunni schools; it focuses on the Quran, Sunnah (the teachings of Prophet Mohammad), Ijma (scholarly consensus), and Qiyas (analogical reasoning) as the primary sources of Muslim law. 

Ithna Asaria Shia School is the largest branch of Shia schools, followed by approximately 85% of Shia Muslims all over the world. The key sources of law according to this school are the Quran, Sunnah (teachings of twelve Imams), Ijma (Shia scholar’s consensus), and Aql (intellect).    

What is a gift deed? 

A gift deed is a legal document that transfers the ownership of a property from the owner to another person, without any monetary exchange. It shows the voluntary transfer of the property by the owner and acceptance by the other person as a gift.

Who are donors and donee?

The person who gives the property to the other person as a gift is the donor and the person who accepts the property as a gift is the donee.

What is a decree? 

A decree is a legally binding order passed by any authoritative body, like the head of the state or a judge. It has force of law and is issued as per the procedure established under the Constitution, other legislations, or customary laws. In legal terms, a decree resolves a legal issue in a case similar to the judgement, but with key differences.   

What are the elements of res judicata under Section 11 of CPC?

The elements of res judicata under Section 11 of CPC are as follows:

• There had been a previous suit between the same parties.
• In the previous suit the case was decided by the competent court and the decision was on the merits of the case.
• The decision in the previous suit was the final decision.
• The parties in the subsequent suit are same as the previous suit.
• The matter in the subsequent case is same asa the previous case.

What is the dower debt?

A dower debt is the amount of dower (mehr) owned by the husband to the wife upon marriage.

References

• Aqil Ahmed, Mohammedan Law (Central Law Agency, Lucknow, 27th edn., 2021).
• C.K Takwani, Civil Procedure (CPC) (EBC Publishing Pvt. Ltd., Lucknow, 9th edn., 2023).
• http://student.manupatra.com/Academic/Abk/Code-of-Civil-Procedure/Chapter1.htm 
• https://supremoamicus.org/wp-content/uploads/2023/03/Adv-Kanika-Adv.-Navdeep-Suhag-.pdf