MEMORIAL

NAME : NANCY DHANKHAR (2014290)

COURSE: BBA LLB

BEFORE THE HON’BLE TRIAL COURT

RAHEEL KHAN
(Plaintiff)
V.
SUNEEL KAPUR
(Defendant)

Memorial for the Defendant

NANCY DHANKHAR

BBA LLB

20142

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 TABLE OF CONTENTS

• INDEX OF AUTHORITIES…………………………………………… 4

• STATEMENT OF JURISDICTION…………………………….……....6

• STATEMENT OF FACTS…………………………………...…………7

• STATEMENT OF ISSUE………………………………………………8

• SUMMARY OF ARGUMENTS…………………….………………….9

• ARGUMENTS ADVANCED…………………………………………10

• PRAYER………………………………………….……………………17

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 INDEX OF AUTHORITIES

• CASES

1. Maimuna Bibi v. Rasool Mian

2. Md. Hesabuddin v. Md. Hesaruddin

3. Ratan Lal Bora v. Mohd. Nabiuddin,

4. Mahboob Sahab v. Syed Ismail,

5. Hasan Ali v. Nazo

6. Abdul Wahid Khan v. Nuram Bibi.

7. Gulam Ahmed Safi v. Mohd Sidiq Dareel and others

• JOURNAL REFFERED

1. All India Reporter

2. Supreme Court Cases

3. Indian Law Reporter

• BOOKS AND DIGESTS

1. Ahmad, Aqil. (2016). Mohammedan Law (26th ed.). Allahabad : Central Law Agency.

2. Mulla, D.F. (2017). Mulla’s Principles of Mohamedan Law (22nd ed.).

3. Siddiqui, Munir. Ahmad (2012). Principles of Mohammedan Law (2nd ed.). Allahabad :

Dwivedi & Company.

• DATABASE REFFERED

1. http://www.judis.nic.in/

2. http://www.lexisnexis.com/

3. http://www.manupatrafast.com/

• STAUTES REFERED

1. Mohammedan law

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2. The holy Quran

3. Transfer of Property Act, 1882

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 STATEMENT OF JURISDICTION

THE HON’BLE COURT HAS JURISDICTION TO TRY THE INSTANT MATTER UNDER SECTION 9.

READ WITH SECTION 16 OF CPC AND MOHAMMEDAN LAW IN AMBIT OF THE HOLY QURAN, THE

CASE AT HAND REQUIRES THE COURT TO DETERMINE WHETHER SHARIA LAW INCLUDES

PERSON’S COMPETENCY TO GIFT HIS PROPERTY AFTER CONSUMING ALCOHOL, AND WHETHER

THE GIFT WAS COMPLETED AS PER THE PROVISION OF MUSLIM LAW.

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 STATEMENT OF FACTS

For the sake of brevity and convenience of this Hon’ble Court the facts of the present case are
summarize as follows:

1. Suleman Khan, a Khoja Muslim inherited a farm house from his father Salem Khan and started
living in his newly constructed bungalow with his friend Suneel Kapur, who was working with
him in a Tyme Cinema MNC at West Mumbai. Suleman was relocated to Italy, by his
organization and decided to migrate there.

2. In the farewell that was organized at that farm house for him where after consuming alcohol he
declared before his friends that he was gifting the farm house he inherited from his father to
Suneel Kapur, who smiled and gave him a hug with tears in his eyes.

3. After that farewell party Suneel Kapur stayed back at the farm house with Suleman Khan till
early morning and from there directly went to the airport for his shooting assignment scheduled
in Switzerland. Giving instruction to a lawyer for mutation regarding farm house, Suleman
boarded the flight to Italy but died in the air crash.

4. His brother Raheel Khan sues for the possession of the farm house on the ground that the gift
was not completed as per the provisions of Muslim law.

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 STATEMENT OF ISSUES

1. Whether Suleman Khan was competent to Gift that property ?

2. Whether Gift was complete as per the provisions of Muslim Law ?

3. Whether Raheel Khan is entitled to possess the farm house and inherit it ?

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 SUMMARY OF ARGUMENTS

• Whether Suleman Khan was competent to Gift that property ?

It is humbly submitted before this hon’ble court that the respondent’s friend Mr. Suleman Khan was

competent to gift his property to the respondent as the requisites of the gift are being achieved by both

the donor i.e the person who makes the gift and the donee i.e the person who takes something as gift.

The person who claims the declaration is a male Muslim of sound mind ,attained the age of maturity, has

the understanding of transaction, free of any fraudulent or coercive influence.

• Whether gift was complete as per the provision of Muslim law ?

It is humbly submitted before this hon’ble court that the gift deed was as per the provision of muslim

law as it satisfies all the three basic conditions also known as the “essentials of a gift”. The act should

fulfill the following conditions:

1. A declaration by the donor

2. Acceptance by the done

3. Delivery of possession by the donor and taking of possession by the done.

• Whether Raheel Khan is entitled to possess the farm house and inherit it ?

It is humbly submitted to the hon’ble court that Raheel Khan i.e petitioner is not entitled to possess the

farm house because the oral declaration is made by the donor to the done and all the requisites of the

oral gift are satisfied. Also the declaration and acceptance are accompanied by the delivery of possession

of the property.

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 ARGUMENT ADVANCED

ISSUE 1

Whether Suleman Khan was competent to Gift that property ?

It is humbly contended that Suleman was competent to gift his inherited property as per the Muslim law,

the capacity of making a gift, like any other contract, depends on the following conditions. The donor

i.e, the person who makes declaration of gift, must have (i) attained the age of majority, (ii) must be of

sound mind and understanding of the transactions, (iii) must be free of any fraudulent and coercive

influence. A valid gift must be free from undue influence. Like Indian contract act, under Muslim law

also if a person was in a position to dominate any other person, the transaction made by such person will

carry no force, and (iv) must have ownership over the property to be transferred by way of gift. The age

of majority for purposes of gift, wills, waqf etc is governed by the Indian majority act, 1875. Therefore,

a person would become major after completion of 18 years under section 3 of this act.

Suleman khan was a person of sound mind and has the mental capacity to understand the legal

implications of his act and is eligible to make a gift. Since the capacity to make a gift is not solely

enough, suleman khan has right to gift his inherited property as he has ownership over the property.

Also Suleman Khan have bona fide intention on his part to transfer the gift the property to Suneel Kapur

i.e. donee.

Soundness of mind and majority are the only qualifications required for making a gift. A gift to be valid

must be made by a person with his free consent and not under compulsion. The donor must not be insane

but a mere weakness of the intellect would not be sufficient to invalidate the gift if the donor was able to

apprehend the transaction

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The law also states that, a Muslim has a right to gift away all his properties which are under his

ownership at the time of declaration of the gift. The transfer of the property by the donor must be in the

absolute interest of the donee. Therefore, it is imperative that the donor himself has the ownership of

that property which he intends to pass on to the donee.

In Maimuna Bibi v. Rasool Mian, the court held that, “ It is necessary that the donor divest himself

completely of all the dominion and ownership over the property of gift. The donor must express his

explicit intention to transfer the ownership to the donee clearly and unequivocally.”

Suleman khan made an oral gift deed before his friends in the farewell party being organized in the

bungalow. As the provision in law states that an oral gift is permissible. However, in order to constitute

a valid gift, the donor should divest himself completely of all ownership and dominion over the subject

of gift. It is also essential for the donee not only to prove that the donor had made an oral gift in his

favour, but it is also essential for him to prove that he accepted the said gift and delivery of possession

of the gifted property had also been effected.

In Md. Hesabuddin v. Md. Hesaruddin, a Muslim woman made a gift of her immovable properties in

favour of her son. The gift was written on ordinary paper and was not a registered deed. The court held

the validity of such gifts in this case as-

“ Under Muslim law, writing is not essential for the validity of a gift whether it is moveable or

immovable property. Therefore, the gift, in this case, was held to be valid because writing and

registration of a gift are not mandatory requisites to make a valid gift.”

Express Declaration: A declaration of a gift must be expressly made in clear words that the donor is

conceding his ownership of the property completely. A gift made in ambiguous words is null and void.

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Suleman khan has declared before his friends that he was gifting the farmhouse he inherited from his

father to Suneel Kapur. Also the desceased Suleman Khan has instructed his lawyer for mutation

regarding the farm house before boarding for Italy.

ISSUE 2

Whether gift was completed as per the provision of Muslim law?

It is humbly contended that the gift was completed as per the Muslim law. The law states that A Muslim

can devolve his property in various ways. Muslim law permits the transfer of property inter vivos (gift)

or through testamentary dispositions (will). A disposition inter vivos is unrestricted as to quantum and a

Muslim is allowed to give away his entire property during his lifetime by gift, but only one-third of the

total property can be bequeathed by will. Conventionally, a gift, being a transfer of property is governed

by the Transfer of Property Act, 1882. But Chapter VII of the Transfer of Property Act, 1882 regulating

the gifts does not apply to the ‘Muslim Gifts’ or the ‘Hiba’.

Under Mohammedan law, to be a valid gift, three essentials are required to exist :

(a) Declaration of gift by the donor

(b) An acceptance of the gift, express or implied, by or on behalf of the done, and

(c) Delivery of possession of the subject of the gift.

Courts have consistently held that when there is no compliance of any of the above three essential

conditions the gift renders itself as invalid. Another characteristic of Mohammedan law is that writing is

not essential to the validity of a gift either of movable or immovable property.In another case the Patna

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High court held that under the Mohammedan law for validity of the deed of gift four elements are

necessary.

For the declaration of the gift there must be bona fide intention of divesting himself in praesenti of his

proprietary title in the property gifted by the donor. The intention must be real and bona fide and the

manifestation or the declaration of such intention must be clear and unambiguous.

In case Ratan Lal Bora v. Mohd. Nabiuddin, Andhra Pradesh High court held that in order that

declaration of gift is established, it must be shown that the donor either in the presence of witnesses or

otherwise made a public statement that he gifted the property in favor of the donee and that he divested

himself of the ownership of the property by delivering such possession as the property is capable of, to

the done who accepted the gift. It is inconceivable to think that a declaration of gift can be made

unilaterally by a Mohammedan without making a public statement of the gift.

Suleman khan made an open declaration of gift to Suneel Kapur i.e. the respondent in front of his friends

in the farewell party organized in the bungalow that Suleman Khan inherited from his father Saleem

Khan. The declaration of the gift be made voluntarily and the donor i.e. Suleman khan was free agent in

making the gift.

In Mahboob Sahab v. Syed Ismail, the Supreme court held that though gift by a Mohammedan is not

required to be in writing and consequently need not be registered under the registration act, to be

complete, there should be a declaration of the gift by the donor, acceptance of the gift, expressed or

implied, by or on behalf of the donee, and delivery of possession of the property or the subject matter of

the gift by the donor to the donee. The donee should take delivery of the possession of that property

either actually or constructively. On proof of these essential conditions, the gift becomes complete and

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valid. In case of immovable property in the possession of the donor, he should completely divest himself

physically of the subject of the gift.

There must be an acceptance of gift, by or on behalf of the done. It may be either actual or constructive

according to the circumstances of the case.

Under the Mohammedan law it is not necessary that there must be actual delivery of possession to make

a gift valid. It is a fundamental rule of Mohammedan law as regards gifts,that "the donor should divest

himself completely of all ownership and dominion over the subject of the gift. 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 of what delivery the property is capable of and whether such delivery as the property is

capable of has been given would depend upon the particular facts in each case. The real test of the

delivery of possession is to see whether the donor or donee reaps the benefit; if the former possession is

not transferred and if the latter, it is transferred, and the gift is complete if the donee is permitted directly

or indirectly to receive the benefit. Constructive possession of the subject of the gift is therefore

sufficient.

Possession means not always actual physical possession but possession which the property is capable of

being given. So far as declaration is concerned, it must be shown that the donor either in the "presence

of witnesses or otherwise made a public statement that he gifted the property in favour of the donee and

that he divested himself of the ownership of the property by delivering possession to the donee. A

Mohammedan can make oral gift of his immovable gift subject to these conditions.

Suleman khan has declared before his friends that he was gifting the farmhouse he inherited from his

father to Suneel Kapur. Also the desceased Suleman Khan has instructed his lawyer for mutation

regarding the farm house before boarding for Italy.

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 ISSUE 3

Whether Raheel Khan is entitled to possess the farm house and inherit it ?

It is contended before the hon’ble court that Raheel Khan is not entitled to possess the farm house as the

rule of ‘spes successionis’ is being applied here. It states that the cardinal principle of mohammedan law

is that the succession for the first time opens on the death of the porosities. Before his death nobody can

claim any right in the property on the basis of his being the heir apparent. Hence during the life time of a

person all that an heir apparent has is mere chance of inheriting i.e. spes succession.

Thus this rule is mere chance of succession and cannot be the object of a valid transfer or release.

In case Hasan Ali v. Nazo, A who has a son B makes a gift of his property to C , now B (the heir

apparent) alleging that the gift was procured by undue influence sues C in A’s life time on the basis of

his rights to succeed to property On A’s death. It was held that the right of B being a mere succession,

he has no cause of action, for he is not entitled to any interest in A’s property.

“NEMO EST HERES VERENTIS” it is explicitly clear that in the Muslim system as in the roman and

English law the principle nemo est heres verentis – ( aliving person has no heir) is recognized. An heir

apparent (or presumptive heir) has no such reversionary interest as would enable him to object to any

sale or gift made by the owner in possession as said in in case Abdul Wahid Khan v. Nuram Bibi.

Suleman khan made a oral declaration to Suneel kapur in presence of his friends as witness to gift his

inherit property to the respondent. It was valid transfer of property as before his death he made a clear

instruction to his lawyer for the mutation of property in the Suneel kapur’s name. Hence all his actions

and the circumstances in the facts states a clear object of the situation also in case of Gulam Ahmed

Safi v. Mohd Sidiq Dareel and others it was held ... "oral gift made under Muslim Law would not be

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affected by Sec 123 of TP Act and the gift, if it has otherwise all the attributes of a valid gift under

Muslim Law, would not become invalid because there is no instrument in writing and registered".

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 PRAYER

Wherefore in the light of facts presented, issues raised, arguments advanced and
authorities cited, the Counsels on behalf of the Respondents humbly pray before this
Hon’ble Court that it may be pleased to adjudge and declare that:

1. The Appeal is dismissed.

Or pass any other order that the court may deem fit in the light of equity, justice and
good conscience and for this Act of kindness of Your Lordships the Respondents shall
as duty bound ever pray.

__________________________________

Counsels of Respondent

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