Order Sheet
IN THE HIGH COURT OF SINDH AT KARACHI
Suit No. 1544 of 2013
|
Date |
Order with signature of Judge |
Plaintiff : Kamran Ali Khan, through Mr. Abdul Sattar Pirzada
Advocate along with Mr. Umair Ali Qazi Advocate.
Defendant No.1 : Vaneeza Umeran, through Mr. Salahuddin Ahmed
Advocate.
Defendant No.2 : Shamim Mushtaq Siddiqui, through Dr. Muhammad
Farogh Naseem Advocate (present on 18.12.2015).
Defendant No.3 : Standard Chartered Bank, through Mr. Muhammad
Khalid Hayat Advocate (present on 06.10.2015,
20.10.2015, 08.12.2015 and 27.06.2016).
Defendant No.4 : Allied Bank Limited, called absent.
Defendant No.5 : United Bank Limited, through Mr. Muhammad Muzaffar
Advocate (present on 18.12.2015).
Defendant No.6 : Hong Kong Shanghai Bank, called absent.
Defendants 7 to 9 : Pakland Private Benevolent Trust, Sonax Private
Benevolent Trust and Saadi Private Benevolent Trust,
called absent.
Defendant No.10 : Eeman, through Mr. Salahuddin Ahmed Advocate.
Dates of hearing : 06.10.2015, 20.10.2015, 08.12.2015, 18.12.2015,
03.06.2016 and 27.06.2016.
-------------------------------
O R D E R
NADEEM AKHTAR, J. – The plaintiff has filed this Suit against the defendants for declaration, revocation, cancellation, permanent injunction and recovery of money. He has claimed that by virtue of a gift deed and the addendum thereto, both executed by him on 06.04.2007, an amount of Rupees 30.000 million was gifted by him to defendant No.1 solely for using towards charitable and social welfare purposes, but defendant No.1 committed breach of such stipulation and utilized the gifted amount for her personal use and benefit. He has prayed as under :
“ It is, therefore, prayed in the interest of justice that this Hon’ble Court may be pleased to pass judgment and decree in favour of the Plaintiff and :-
I. Declare that the amount of Rs.30 million as contained in the Deed was to be used solely for charitable and social welfare purposes by the Defendant No.1.
II. Declare that Defendant No.1 has illegally usurped, utilized and embezzled the amount of Rs.30 million as contained in the Deed.
III. Declare that the registered conveyance deed in respect of the Said Property is unlawful and/or void and that the same be delivered up and cancelled by this Hon’ble Court.
IV. Declare that the Defendant No.1 has committed a fundamental breach and violation of the terms and conditions of the Gift Deed and that the same stands revoked.
V. Declare that any asset, property and or investment made or acquired by the Defendant No.1 from the gifted amount of Rs.30 million for her personal benefit, including but not limited to those mentioned in paragraphs 18 (a to d) of the Plaint are illegal and unlawful and that the same be taken into possession by the Nazir of this Hon’ble Court and thereafter transferred to the PPBT and/or the SBPT and/or the Saadi Trust.
VI. Declare that the Defendant No.1 be removed as trustee of the PPBT and/or SBPT and/or the Saadi Trust.
VII. Grant a permanent injunction restraining Defendant No.1 from interfering with, utilizing, transferring, selling / alienating and or operating any property, assets or investment acquired by virtue of the gifted amount of Rs.30 Million including but not limited to those mentioned in paragraphs 18(a to d) of the Plaint.
VIII. Direct the Defendant No.1 to pay to the Plaintiff an amount of Rs. 100 Million along with markup until the realization of the said amount and or disposal of the present suit.
IX. Direct the Defendant to pay to the Plaintiff, mesne profit / compensation any profit or mark up accrued in favour of the Defendant No.1 by virtue of her illegal and unlawful utilization of the gifted amount of Rs.30 million.
X. Grant any other relief deemed just and appropriate in the circumstances of the case.
XI. Grant costs of the suit.”
2. The questions involved in this Suit are whether the alleged condition in the admitted gift, that the gifted amount was to be utilized only for charitable and social welfare purposes, was valid or otherwise, whether the donee / defendant No.1 was obliged to follow or fulfil such condition, and what the effect of the said condition is on the subject gift. On 06.10.2015, the following order was passed by me :
“After hearing the learned counsel for defendant No.1 at some length, I am of the view that this Court should first decide the question of maintainability of this Suit as admittedly the Suit has been filed on the basis of a gift deed and an addendum executed in pursuance thereof, whereby an amount of Rs.30 million was gifted by the plaintiff to defendant No.1 with a specific condition that the said amount should be used by defendant No.1 only for charitable and social welfare purposes. Learned counsel for the plaintiff is put on notice to satisfy the Court on the next date whether the subject gift with the above mentioned condition is a valid gift, and whether this Suit on the basis of the said conditional gift is maintainable. He requests for time to satisfy the Court on this point. At his request, adjourned to 20.10.2015 at 12:00 noon.”
3. Mr. Abdul Sattar Pirzada, learned counsel for the plaintiff, frankly conceded at the very outset that the subject gift was conditional. He, however, submitted that in order to understand the case of the plaintiff and to decide the question of maintainability of the Suit, it is necessary to appreciate the intention of the parties and the circumstances in which the gift was made with a specific condition and for a specific purpose. He contended that the plaintiff is a businessman and philanthropist ; in view of philanthropic objectives of defendant No.1, an amount of Rupees 30.000 million was gifted to her by him solely for using towards charitable and social welfare purposes ; defendant No.1 gave him unconditional assurance and undertaking that the said amount will be used solely and exclusively for charitable causes in London, United Kingdom, where she resided at the relevant time ; in view of such unconditional assurance and undertaking by defendant No.1, he was convinced into executing a gift deed dated 06.04.2007 in her favour ; as defendant No.1 was in London at the relevant time, the gift was accepted by her attorney (defendant No.2) on the basis of special power of attorney dated 19.03.2007 ; on the day when the gift deed was executed and before the transfer of the gifted amount in favour of defendant No.1, an addendum to the gift deed dated 06.04.2007 was executed by him, which was also accepted by the said attorney of defendant No.1 ; express terms and conditions were mentioned in the addendum that the above amount was being gifted to defendant No.1 for donation to charitable and social welfare purposes worldwide over a period of five years ; and, the entire above amount was transferred to defendant No.1 through three cheques issued in her name by the plaintiff.
4. He further contended that the plaintiff was completely surprised when he came to know that instead of carrying out the objectives of the gift in UK, defendant No.1 shifted to Pakistan and purchased an immovable property in Karachi ; when he questioned her, she convinced him that she would be able to carry out his charitable work from Pakistan and she was in the process of donating the gifted money to various global charitable organizations ; he asked her to provide him details of charitable organizations to whom she had donated the gifted money along with acknowledgments and receipts of donations from such organizations ; despite his repeated demands, no such details were provided to him by defendant No.1 on the pretext that the period of five years stipulated in the gift deed had not expired ; suspecting foul play on the part of defendant No.1, he asked her to return the gifted amount, which was refused by her by claiming that most of the funds had been donated for charitable purposes and nothing was available to return ; in September 2011, defendant No.1 had agreed to immediately set up three different trusts for charitable purposes wherein common friends and the plaintiff’s brother were to be nominated as trustees to monitor her activities ; and, defendant No.1 was obliged to donate Rupees 10.000 million to each of the said three trusts, but she did not do so.
5. Learned counsel submitted that the plaintiff has leveled specific allegations in the plaint to establish the breach of condition committed by defendant No.1. He pointed out that it has been alleged in the plaint that the amount of Rupees 10.000 million, which was credited in the bank account of defendant No.1 through the first cheque bearing No.5328380, was illegally utilized by her by investing the same in a Term Deposit Receipt (TDR) for a period of 90 days, and then by transferring an amount of Rupees 3.700 million to her UBL account on 23.08.2007 and also by making a pay order on 23.08.2007 for Rupees 1.500 million in favour of the seller from who she had purchased an immovable property. The plaintiff has further alleged that the said property was thus purchased by defendant No.1 from the amount gifted by him for charitable purposes. He has also alleged that the two vehicles described in paragraph 18(b) of the plaint were purchased by defendant No.1 from the gifted amount, and an amount of Rupees 6.500 million was transferred by her to her account in Hong Kong Shanghai Bank for her personal use. He has also alleged that the amount of Rupees 10.000 million deposited in the account of defendant No.1 with Allied Bank Limited on 07.04.2007 vide second cheque No.5328381, was utilized by her on 13.03.2009 for purchasing Special Saving Certificates. Regarding the third cheque No.5328382 for Rupees 10.000 million deposited on 07.04.2007 in the account of defendant No.1 with Standard Chartered Bank, it has been alleged that the said amount was converted by her on rollover basis into a Term Deposit Receipt (TDR).
6. Mr. Pirzada submitted that there was a clear understanding between the parties that the amount gifted by the plaintiff will be used by defendant No.1 only for charitable and social welfare purposes, but since such stipulation was not specifically mentioned in the gift deed, the parties agreed to execute the addendum on the same day before transfer of the amount in favour of defendant No.1, wherein the above stipulation was mentioned by mutual consent. He pointed out that execution of the gift deed and addendum as well as receipt of the gifted amount has not been disputed by defendant No.1. He contended that for all legal intent and purposes the addendum containing the stipulation is a separate agreement being enforceable in law and binding on the parties, and defendant No.1 was a trustee of the amount specified therein. Learned counsel argued that by not using the gifted amount for the specific purpose for which it was gifted and by utilizing the same for her personal use and benefit, defendant No.1 committed a glaring breach of the fundamental and mandatory condition of the gift due to which the entire purpose of the gift has been frustrated. It was further argued that in view of the said breach by defendant No.1, the plaintiff is entitled not only to revoke the gift, but also to claim the entire amount of gift together with all such properties, benefits, profits and gains that have been acquired / received by defendant No.1 from the amount gifted by him. In support of his submissions, learned counsel heavily relied upon Thakur Raghunath Ji Maharaj and another V/S Ramesh Chandra, AIR 2001 S.C. 2340. In the end, it was urged that the Suit is maintainable in law as well as on facts and the plaintiff is entitled to the relief prayed for.
7. On the other hand, Mr. Salahuddin Ahmed, learned counsel for defendant No.1, contended that the gift in favour of defendant No.1 was validly made and it stood completed in all respects before execution of the addendum containing the alleged condition. He submitted that the addendum and the alleged condition stated therein are void as the same are in derogation to the gift admittedly made earlier by the plaintiff in favour of defendant No.1 ; and, defendant No.1 was not obliged to follow or honour the said void condition. In support of his above submission, he placed reliance upon (1) Said Akbar and others V/S Mst. Kakai, PLD 1975 S.C. 377, (2) Abdul Hameed and 23 others V/S Muhammad Mohiyuddin Siddique Raja and 3 others, PLD 1997 S.C. 730, (3) Muhammad Nawaz and others V/S Muhammad Khan and others, 2005 SCMR 710, (4) Ghulam Hussain Meherally V/S Mst. Sirin Bai, PLD 1966 (W.P.) Karachi 608 (Division Bench), (5) Mir Zaman Khan through legal heirs V/S Ajaib Sultan and 9 others, 1994 CLC 991 (Division Bench), (6) Mst. Khan Bibi V/S Mst. Safia Begum ahnd others, PLD 1969 Lahore 338 (Division Bench), (7) Bahadur V/S Jan Muhammad, PLD 1960 (W.P.) Karachi 745, and (8) St. John Ambulance Association Pakistan V/S Pakistan Red Cross Society and another, 1988 CLC 186. He submitted that the authority relied upon by the learned counsel for the plaintiff from the Indian jurisdiction cannot be applied in the instant case in view of the above-cited law laid down by the Supreme Court and High Courts of Pakistan, and also as the principles of gift in Muhammadan Law were not discussed in the said authority.
8. Without prejudice and in addition to his above submission, he submitted that the addendum containing the alleged condition was admittedly executed by the attorney of defendant No.1, who had no authority under the special power of attorney to accept any such condition on behalf of defendant No.1, or to convert an unconditional gift in her favour into a conditional one, or to enter into an agreement on her behalf, or to accept an obligation of trust on her behalf. He contended that the said attorney was authorized by defendant No.1 only to accept the gift on her behalf, therefore, any act or thing done by him beyond his said mandate was unauthorized and illegal, as the instrument of power of attorney in pursuance whereof an attorney is authorized to act on behalf of the principal, is to be construed strictly. He submitted that the argument advanced on behalf of the plaintiff that the alleged addendum was an independent contract, cannot be accepted as it was void for lack of consideration ; and, the attorney had no authority to accept any condition whatsoever in relation to the amount that had already become the property of defendant No.1 by virtue of an earlier gift. In support of these submissions, he relied upon (1) Muhammad Yasin and another V/S Dost Muhammade through legal heirs and another, PLD 2002 S.C. 71, (2) Imam Din and 4 others V/S Bashir Ahmed and 10 others, PLD 2005 S.C. 418, (3) Unair Ali Khan and others V/S Faiz Rasool and others, PLD 2013 S.C. 190, (4) Muhammad Mehrban V/S Sadruddin and another, 1995 CLC 1541(S.C. AJ&K) and (5) Zawar Hussain V/S Abid Hussain Qureshi, 1994 MLD 2251.
9. Dr. Muhammad Farogh Naseem, learned counsel for defendant No.2, supported the case of the plaintiff despite the fact that defendant No.2 admittedly acted as the attorney of defendant No.1. He contended that the transfer of funds by the plaintiff to defendant No.1 was not a gift stricto senso, but was meant to be utilized exclusively for charitable purposes. He argued that the transaction was that of a ‘secret trust’, and in support of this submission he relied upon the definition of ‘secret trust’ in Ballentine’s Law Dictionary (Third Edition) ; namely, “A term frequently applied to any express or implied arrangement or understanding between a testator and a legatee whereby the latter is to take ostensibly as an ordinary legatee under the will of the testator, but is thereafter to apply the bequest or a part of it towards some charitable purpose ; the real design of the bequest being to circumvent the statute limiting charitable bequests and devises”. He further contended that by not utilizing the gifted amount for charitable purposes as desired by the testator / plaintiff, defendant No.1 committed breach of the said secret trust.
10. Exercising his right of rebuttal, learned counsel for the plaintiff contended that since the very beginning and even before execution of the gift deed, defendant No.1 was fully aware of the condition on which the gift was made and the said condition was willingly accepted by her ; and in view of this position, she has waived her right to raise any objection to such condition at this belated stage. Regarding the cases relied upon by the learned counsel for defendant No.1, he submitted that the same being distinguishable are inapplicable in this case as in all the said cases conditional gifts were questioned ; whereas, the plaintiff’s case is in respect of a conditional gift followed and supported by an agreement between the donor and donee containing the condition, as discussed in the Indian case relied upon by him.
11. I have heard the learned counsel for the parties at length and with their valuable assistance I also had the opportunity to examine the material on record and the law cited at the bar. Admittedly, the gift in question was made by the plaintiff in favour of defendant No.1 in accordance with Muslim Law as specifically mentioned in paragraph 2 of the gift deed dated 06.04.2007. Therefore, before deciding the question of maintainability of this Suit on the basis of the available record and in light of the arguments advanced by the learned counsel, I deem it necessary to briefly discuss the basic principles, ingredients and essentials of a valid gift in Islamic Law. In Hedaya by Charles Hamilton, gift has been defined as “Hibba in its literal sense signifies the donation of a thing from which the donee may derive benefit ; in the language of the law it means the transfer of property, made immediately, and without any exchange”. Ballie has defined it as “the conferring of a right of property in something specific without any exchange”. In Section 138 of the Principles of Muhammadan Law by D. F. Mulla, gift is defined as “a transfer of property, made immediately, and without any exchange, by one person to another, and accepted by or on behalf of the latter.” Thus, in its technical sense gift is an unconditional transfer / conferring of property made immediately and without any exchange or consideration by one person to another and accepted by or on behalf of the latter.
12. The requisites of a valid gift are parties, subject, extent and formalities or mode of gift. The parties to a gift transaction are the donor who makes the gift and the donee who accepts and takes something as gift. The donor must have absolute title in the subject of the gift. The subject of a valid gift can be anything which can be legally owned or possessed, and over which dominion or right of property may be exercised, or anything which can be reduced to possession, or anything which exists either as a specific entity or as an enforceable right. The act of making a gift must fulfill three conditions which are commonly known as essentials of a valid gift ; namely, a declaration by the donor, delivery of possession by the donor, and acceptance by the donee. The real test of the delivery of possession is to see whether the donor or the donee reaps benefit from the property ; if the donor, the possession cannot be deemed to be a transfer, and if the donee, possession is transferred and the gift is complete. The reason why delivery of possession has been made the most essential requirement of a valid gift is that gift is a contract without consideration and contracts without consideration are not enforceable in law. As such, like other contracts, only offer and acceptance will not complete a contract of gift. It is because of this reason that the delivery of possession has been made essential. Under Islamic Law, gift is not complete without delivery of possession, hence the donor has unrestricted right to revoke it before the delivery of possession and not thereafter.
13. According to Hedaya, a gift cannot lawfully be retracted without the consent of both parties or by a decree, because retraction of a gift is a disputed point amongst the learned, and also because the retraction of deed of gift, being a deed of conveyance, is the very opposite of conveyance and consequently cannot admit its opposite. Sub-Section (1) of Section 167 of the Muhammadan Law by D.F. Mulla provides that “A gift may be revoked by the donor at any time before delivery of possession. The reason is that before delivery there is no completed gift at all”. Sub-Section (4) of Section 167 ibid provides that “Once possession is delivered, nothing short of a decree of the Court is sufficient to revoke the gift. Neither a declaration of revocation by the donor nor even the institution of a Suit for resuming the gift is sufficient to revoke the gift. Until a decree is passed, the donee is entitled to use and dispose of the subject of the gift”.
14. Islamic Law recognizes and insists upon the distinction between the two elements of a property ; the ‘corpus’ and the ‘usufruct’. Corpus means the absolute right of ownership over the property which is heritable, unrestricted and unlimited ; and, by usufruct is meant the right of a person to use and enjoy the property, which right is limited and not heritable. In dealing with a gift under Islamic Law, the first duty of the Court is to see whether it is a gift of the corpus or the usufruct. If it is a gift of the corpus, then any condition which derogates from absolute dominion over the subject of gift will be rejected as repugnant. The subject of a gift may be either ‘corporeal’ or ‘incorporeal’. A corporeal property is one which has physical existence and as such can be seen and touched, for instance house, land, articles, money, etc. ; and, an incorporeal property is one which has no physical existence, such as right to repayment of a debt, equity of redemption, right to sue, etc. In case of corporeal property, the donor must deliver possession of the corpus of the property to the donee by any appropriate method of transferring all the control that the nature of the property admits of, and further by the donor completely divesting himself of all the rights in the property in favour of the donee. Where a gift is made subject to a condition which derogates it from completeness, the gift is valid, but the condition is void, and the gift will take effect as if there was no condition attached to it. Conditions restraining or restricting the power of alienation of the donee will have no effect on the gift. Section 164 of the Muhammadan Law by D.F. Mulla provides that “When a gift if 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 conditions were attached to it”.
15. Coming back to the case in hand, it is an admitted position that the money / property was gifted by the plaintiff to defendant No.1, the said gift was duly accepted by defendant No.1, and pursuant to the said gift and acceptance thereof, possession of the subject of the gift was handed over by the plaintiff voluntarily to defendant No.1 by transferring the entire gifted amount in her bank accounts. Thus, the gift by the plaintiff in favour of defendant No.1, having all the essentials of a valid gift, was completed in all respects. In any event, it is not the case of the plaintiff that the gift was not completed or was defective. The case set up by him precisely is that despite completion of the gift in all respects, it was subject to a condition and defendant No.1 / donee was bound to fulfill such condition ; and, the condition was that the gifted amount will be used by defendant No.1 solely towards charitable and social welfare purposes. In view of the admitted position noted above, I am of the considered view that the gift in favour of defendant No.1 was of the corpus of the property with absolute and unlimited right of ownership over the property ; and as discussed above, since the gifted property was corporeal in nature, the donor / plaintiff, after delivering possession and control thereof to the donee / defendant No.1, completely divested himself of all the rights in the gifted property.
16. As discussed above, in case of gift of corpus of property, any condition which derogates the gift from completeness or from absolute dominion over the subject of gift, particularly condition restraining or restricting the right or power of the donee to alienate, is liable to be rejected as repugnant, and in such an event, the condition will be void and the gift will remain valid and will take effect as if there was no condition attached to it. In this context, I respectfully rely upon Abdul Hameed (supra), wherein it was held by the Larger Bench of five honourable Judges of the Supreme Court that if corpus of the property is gifted then attaching of any condition derogatory to the gift, i.e., transfer of absolute ownership to the donee, is treated as void ; and, the rule propounded by all schools of thought, therefore, is that any condition attached, which is derogatory to the absolute conveyance of the gifted property is to be treated invalid and thus stands nullified and is rendered ineffective. Reliance is also placed upon Muhammad Nawaz (supra), wherein the Hon’ble Supreme Court was pleased to hold that if the gift is found to be of corpus of property, then any condition attached to such gift would be illegal, while the gift itself would be perfectly valid. Similar view was taken by the learned Division Benches of this Court and Lahore High Court in Ghulam Hussain Meherally (supra) and Mir Zaman Khan (supra).
17. In my humble opinion, the only test of judging whether the condition alleged by the plaintiff in the gift in question was valid or otherwise, is to see if the alleged condition was repugnant to the gift or derogatory to its completeness and absolute dominion over its subject or absolute conveyance of the gifted property, i.e., transfer of absolute ownership to defendant No.1, or restrained or restricted the right or power of defendant No.1 to alienate. According to the condition alleged by the plaintiff, defendant No.1 was not allowed to use the gifted amount for any purpose other than charitable and social welfare purposes. Thus, the condition clearly restricted and restrained the absolute and unlimited right of ownership and dominion of defendant No.1 over the corpus of the gifted property, her right to derive benefit therefrom, as well as her power to alienate, rendering the condition repugnant to the gift and derogatory to its completeness and absolute conveyance. After delivering possession and control of the gifted property to defendant No.1, no such condition could be imposed by the plaintiff as he had completely divested himself of all the rights therein. In view of the law laid down by the Hon’ble Supreme Court in the cases of Abdul Hameed (supra) and Muhammad Nawaz (supra), the above condition alleged by the plaintiff, being illegal and void, stands nullified and is rendered ineffective, while the gift itself would remain perfectly valid, and the gift will take effect as if no conditions were attached to it.
18. Even otherwise, the gift deed admittedly does not stipulate the condition alleged by the plaintiff. The question whether or not the said condition could be imposed subsequent to the gift by means of an addendum, or the condition could be accepted by the attorney of the donee / defendant No.1, has become inconsequential in view of my finding that the condition was void. However, it may be observed that the power of attorney granted by defendant No.1 was only to the extent of acceptance of the gift, as defendant No.1 did not authorize her attorney to accept any condition in relation to the gift.
19. With profound respect to the learned counsel for the plaintiff his contention that the condition in the gift was legal or that defendant No.1 was bound by the same as the gift was followed by a separate mutual agreement containing such condition, cannot be accepted for many reasons. No such separate agreement has been pleaded in the plaint which simply states that an addendum to the gift deed was executed. It is well-settled that parties are bound by their pleadings ; unless a case is set up in pleadings, decision of the case cannot possibly rest on such a plea ; and, if a party had failed to plead and raise a specific ground in his pleadings from the very inception of the case, he would be precluded from improving his case and to raise new ground of attack by departing from previous pleadings, as held in Sh. Fateh Muhammad V/S Muhammad Admit and others, PLD 2007 S.C. 460, Zulfiqar and others V/S Shahadat Khan, PLD 2007 S.C. 582 and Malik Muhammad Faisal and another V/S State Life Insurance Corporation through Chairman and 2 others, 2008 SCMR 456. Moreover, if there was any condition, the same was void being derogatory to the gift as already held above, and in such an event, even the consent of defendant No.1 would not validate the void condition. His other contention that defendant No.1 was a trustee of the gifted amount, is also not tenable as this stance has also not been pleaded in the plaint, and also as the alleged trust is clearly repugnant and derogatory to the completeness of gift. The Indian case relied upon by the learned counsel for the plaintiff cannot be applied in the instant case as the principles of gift under the Islamic Law were not discussed therein nor was the said case decided keeping in view the relevant and mandatory provisions of Islamic Law discussed above. As already noted above, the subject gift was made by the plaintiff to defendant No.1 admittedly under the Muslim Law, which fact is clearly and specifically stated in the gift deed.
20. Learned counsel for defendant No.2 has argued that the transaction was that of a secret trust. According to the definition of secret trust relied upon by him, it is an express or implied arrangement or understanding between a testator and a legatee whereby the latter is to take ostensibly as an ordinary legatee under the will of the testator, but is thereafter to apply the bequest or a part of it towards some charitable purpose, and the real design of the bequest being to circumvent the statute limiting charitable bequests and devises. In the instant case, it is not the case of the plaintiff that the gifted amount was to be taken by defendant No.1 ostensibly as an ordinary legatee under his will, or the real design of the bequest was to circumvent the statute limiting charitable bequests and devises. The plaintiff has admitted all the essentials of a valid gift, that is, declaration, acceptance and transfer of possession of the gifted amount to defendant No.1, but has pleaded that the gift was subject to a condition. Moreover, defendant No.2 in his written statement and the plaintiff in his plaint, have not pleaded any secret trust. In any event, defendant No.2 has no locus standi to plead the alleged secret trust on behalf of the plaintiff. Hence with due respect to the learned counsel for defendant No.2, I am unable to agree with him.
21. In view of the above, the question now arises when the alleged condition was null, void and ineffective and the gift was/is to be treated as if no condition was attached to it, whether or not the plaintiff is entitled to assert any right, title or interest in the gifted property or to claim any relief in respect thereof. It is an admitted position that the gifted amount was transferred to defendant No.1 by the plaintiff and the gift of corpus of property was completed in all respects. Thus in view of the law discussed above, the plaintiff completely divested himself of all the rights in the property, and defendant No.1 became the sole and lawful owner of the gifted amount having absolute rights therein to alienate. This being the legal position, the plaintiff does not have any legal character or right in respect of the gifted amount, and as such this Suit is clearly barred under Section 42 of the Specific Relief Act, 1877, in relation to the main relief of declarations sought in prayers I to VI. Accordingly, the Suit is also barred under Section 56 of the said Act in respect of the consequential relief of injunction sought in prayer VII. Further consequential relief of direction sought in prayers VIII and IX also cannot be granted in view of the above. The plaint is, therefore, liable to be rejected under Order VII Rule 11 CPC being barred by law.
22. Another important aspect of this case is that the gift deed, the addendum thereto and the cheques in respect of the entire gifted amount were admittedly executed on 06.04.2007, and the entire gifted amount was admittedly deposited on 07.04.2007 and 09.04.2007 in the bank accounts of defendant No.1. This Suit was instituted on 05.12.2013 after about six years and eight months of the above execution, transfer and deposit. Thus, the Suit is also barred by time.
23. As a result of the above discussion, the plaint of the instant Suit is rejected. Consequently, the pending applications bearing CMA Nos. 13492/2013, 13493/2013, 13494/2013, 13495/2013 and 14124/2013 filed by the plaintiff stand dismissed, and CMA Nos.13922/2013, 3839/2014 and 10024/2015 filed by defendant No.1, having become infructuous, also stand dismissed. The parties are left to bear their own costs.
_________________
J U D G E