Delivery of possession is essential to complete and validate a gift.

JUDGMENT : - 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. Unfortunately therefore this appeal has to be heard and disposed of without hearing her or anyone on her behalf.

3. The relevant facts are these. The assignee-decree-holder took an assignment of a decree obtained by Yusufs first wife in respect of her Mahr for about Rs.816. Gulsum Bibi is Yusufs second wife. After Yusufs 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 Bibis 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 Gulsum 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 time 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 S.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 rend