9911796707
TMI Blog1983 (11) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... on 2-4-1970. In support of this contention, a copy of the affidavit executed by Syed Ahmed Hussain has been filed before the Assistant Controller. It was also contended that these gifts were subjected to gift-tax. A copy of the gift-tax assessment order for the assessment year 1971-72 dated 6-3-1976 has also been filed before the Assistant Controller. Based on these materials it was urged that the deceased did not own any lands at the time of his death. The deceased also executed a will on 1-1-1967 which was got attested before a notary on 8-10-1967. According to the Assistant Controller, no mention whatsoever has been made about the existence of the will nor anything has been mentioned to indicate the revocation of the will in the affidavit executed on 31-3-1972 before the notary public. Therefore, he was of the opinion that the affidavit is a got-up affair. According to the Assistant Controller, the basic requirement for the alleged gift has not been complied with. Firstly, according to the Assistant Controller, the property made under HIBA should be delivered in such a manner as is susceptible to being taken delivery by a donee and the same thing is absent. The copy of the mutat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion was made about the existence of the will nor anything has been mentioned to indicate the revocation of the will dated 1-1-1967. Therefore, it was submitted that the order of the Appellate Controller may be set aside and that of the Assistant Controller may be restored. 5. We have also heard the learned counsel appearing for the accountable person who supported the order passed by the Appellate Controller. 6. The fact remains that the assessee owned lands to the extent of II acres 30 guntas out of which, during his lifetime, he has sold away a part of the land to Viswasnagar Co-operative Housing Society in the year 1964 through a registered sale deed for consideration of Rs. 90,000. With regard to the remaining extent of land, it was contended that the deceased made an oral gift of the same to his wife and children on 2-4-1970. In support of this contention, a copy of the affidavit executed by the deceased on 31-3-1972 was filed before the Assistant Controller. The deceased also executed a will dated 1-1-1967 which was got attested before a notary on 8-10-1967. In the said will, it was stated that all the properties, both movable and immovable, belonging to the deceased we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been registered as required by the Registration Act, section 17(a). 8. One of the contentions raised by the Assistant Controller was that a bequest to a heir is not valid unless the other heirs consent to the bequest after the death of the testator. According to Mohammedan law, no person can bequeath a property by will which is more than one-third of the estate he was holding before his death. A bequest may be revoked either expressly or by implication. Revocation is express when the testator revokes the bequest in express terms either oral or written. It is implied, when he does an act from which revocation may be inferred. According to section 129 of the Mohammedan law, a bequest may be revoked by an act which occasions an addition to the subject of the bequest or an extinction of the proprietary right of the testator. For example (a) a bequest of a piece of land is revoked, if the testator subsequently builds a house upon it ; (b) a bequest of a piece of copper is revoked, if the testator subsequently converts it into a vessel ; and (c) a bequest of a house is revoked, if the testator sells it or makes a gift of it to another. This principle has been applied in the Pakistani c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iting is not essential for the validity of the gift either of immovable or movable property. Considering the law on the subject, the Appellate Controller came to the conclusion that the will as set up in this case is invalid in law. We are also in entire agreement with the order of the Appellate Controller on this point. 9. The other question that now remains to be considered is whether there is a valid oral gift as contemplated under the Mohammedan law. In the present case, it was contended that there was evidence of delivery of possession in the sense that the donor delivered the possession of the land to his wife who was given the above gift and the delivery of possession of the agricultural lands gifted to the minor children was taken by their father and natural guardian that is the donor himself. In the case of gift of immovable property by husband to wife, section 153 (Mulla's Principles of Mahomedan Law, 17th edition) states that : " The rule laid down in section 152(3) applies to gifts of immovable property by a wife to the husband, and by a husband to the wife, whether the property is used by them for their joint residence, or is let out to tenants. The fact that the h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [1875] 15 (Beng.) LR 67 ; K. Veerankutty v. Pathumakutty [1956] (Mad.) 1004. In Hedaya, 484 ; Baillie, 538 ; Macnaghten, p. 51, section 9, it was stated that : " Where there is on the part of a father or other guardian, a real and bona fide intention to make a gift, the law will be satisfied without change of possession, and will presume the subsequent holding of the property to be on behalf of the minor." (Mulla's Principles of Mahomedan Law, page 150). It was also stated that where delivery and possession of a gift to a minor is effected to a person specified by the donor as guardian (other than father) and the father accepts or acquiesces to such an arrangement, the gift is valid--- Azeshabai v. Kathoonbi [1966] AM 462. In the case of Kairum Bi v. Mariam Bi AIR 1960 (Mad.) 447 it was stated that : " The rules of Mahomedan law do not require that to make a gift valid the donor must have physical possession of the property and must hand over that physical possession to the donee. It is enough if he has got legal possession of the properly and transfers to the donee such possession as the matter is susceptible of." 11. It was also stated that the question whether poss ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
