JUDGMENT : KARAMAT HUSAIN, J. 1. In this case the heirs of one Karam Ahmad Khan instituted a suit against his widow for possession of their share in the property left by Karam Ahmad Khan. One of the pleas in defence raised by the widow was that Karam Ahmad Khan's shares in the dwelling house and the properties Nos. 1 to 5 (both inclusive), were given to her by her husband under a deed of gift, dated the 26th of February, 1896, and that she got possession of those properties in the life-time of her husband. Both the courts below coming to the conclusion that the so-called deed of gift, dated the 26th February, 1896, was an ariat and not a gift, decreed the plaintiff's claim. The court of first instance, with reference to the question of possession, remarked as follows:— “The defendant never treated or considered herself as an absolute owner of the proparty. Mutation was not effected in her favour during the life-time of her husband. When her husband died she did not claim the property as property which she had received as a gift but by way of inheritance from her husband.” The lower appellate court on the question of possession observed as follows:— “The deed of gift is registered; but mutation of names has not been effected nor was possession delivered. In fact, the widow appears to have forgotten about the existence of the deed until the present suit was instituted; for, upon the death of her husband, she claimed mutation of names over the entire property by virtue of inheritance.” The findings in very clear terms show that the widow did not apply for mutation of names in respect of such property as stood in need of mutation of names. She therefore did not obtain possession over them in the life-time of her husband. The defendant comes here in second appeal, and it is argued on her behalf that the deed of the 26th February, 1896, is a deed of gift with void conditions and not agrarian. I have gone through a certified copy of the deed which is 011 the record and have come to the conclusion that it is a gift of the property covered by it with void conditions. I have gone through a certified copy of the deed which is 011 the record and have come to the conclusion that it is a gift of the property covered by it with void conditions. The expression in the deed, is shart per main ne de diya aur dikhal bhi de diya ki ta hayat apne musammat mazkur sirf pane munafe ke malik rahegi aur kisi tarah par ikhtiyar antiqal haqiat mazkur ka nahin hoga” (I have given the property, covered by the deed and put her in possession thereof with this condition that she will be entitled only to receive the income of it during her life-time and that she will not be entitled to transfer the said property) and the expression “Jo haqiat mujhko Jiiba bila lene qimat ke kari hai usko min mukira kisi tarah per intiqal na kar sakegi sirf pane munafe ke malik rahegi” (The property which has been gifted to me without consideration over that I shall have no power of transfer, and I shall be entitled to the income thereof) conclusively show that the intention was to transfer the corpus of the property to Niaz Begam and to take away the power of transfer from her. Such gifts under the Hanafia Law are gifts with conditions, and the rule on that point is that the gifts are valid but the conditions void. “All our masters are agreed that when one has made a gift and stipulated for a condition that is fasid or invalid, the gift is valid, but the condition is void” (Baill-ie's Hanafeea Law, Book on Gift, Chapter VII, page 546). 2. Construing the deed, dated the 26th February, 1896, to be a gift with void conditions, the next question to be considered is whether possession was or was not delivered in pursuance of that gift by the husband to the wife. 3. The concurrent finding of both the courts below on that point, so far as the property which stood in need of mutation of names is concerned, is that no possession was obtained by Niaz Begam during her husband's life-time. The deed of gift, therefore, in respect of the property which needed mutation of names is inoperative, and Niaz Begam obtained no title to that property. 4. The deed of gift, therefore, in respect of the property which needed mutation of names is inoperative, and Niaz Begam obtained no title to that property. 4. Regarding the gift of the dwelling house there is nothing to show that the wife obtained possession of it in the lifetime of the husband as a donee from him. The correct rule of Hanafeea Law in case of a gift by a husband to a wife is that no presumption as to possession will be made, and the wife as a donee will have to establish her possession during the life-time of her husband as a matter of evidence. But some rulings have placed a gift by a husband to his wife on the same footing as one by a wife to her husband. This, with great respect, is not quite correct, inasmuch as in the case of a gift by a wife to her husband there is the presumption of the Hanafeea Law that a wife and all her belongings are in the possession of the husband, and that therefore when a wife makes a gift of any property to her husband, no fresh possession by him is necessary. There is, however, no presumption under the Hanafeea Law that the husband and his property are in the possession of his wife and therefore a gift by the husband to the wife stands in need of delivery of possession. 5. As in the case before me, there is no finding by the lower appellate court whether Musammat Niaz Begam did or did not obtain possession of the dwelling house in the life-time of her husband, it is necessary to have a clear finding on the following issue:—Did or did not Musammat Niaz Begam obtain possession of the dwelling house given to her by Karam Ahmad Khan under the deed, dated the 26th February, 1896, in his life-time. 6. I, therefore, under Order 41, Rule 25, remit the above issue to the lower appellate court for trial. That court will be at liberty to take such additional evidence as the parties may adduce. On return of the finding ten days will be allowed for objections. 7. On return of the finding that the husband did not deliver possession of the house to the donee, the appeal was dismissed.