Alla Pichai Tharaganar And Others v. Mahomad Moideen Tharaganar And Others

1. The first contention is that a gift of the house under Ex. 4 is invalid by reason of the possession of the property not having completely passed at the time.

2. In this matter we see no reason why we should not follow the decision of Kandath Veettil Bava v. Musaliam Veettil Pakru Kutti(1) in preference to the earlier decision in Bava Saheb v. Mahomad(2).

3. It was held in Kandath Veettil Bava v. Musaliam Veettil Pakru Kutti that in certain circumstances such as those connected with the present case, the residence of the donor in the house which is the subject of gift would not be a ground for invalidating the gift.

4. The next contention is that the condition that defendants 1 and 2 should enjoy the properties absolutely only after the donor's death made the gift itself not an absolute gift and that conditional gifts are not recognized in the Mahomedan law. On this question it is necessary to distinguish between contingent gifts and gifts with a condition attached. Though the former are generally considered invalid, the latter can be enforced as absolute gifts, although the condition may be bad: see Nizamuddin Gulam v. Abdul Gafur(3) and the observations at p. 131, Vol. 1, of Ameer Ali's Mahomedan Law (4th Edition). This second appeal fails and is dismissed with costs.

S.N/R.K

5. Appeal dismissed.