MAITHEEN BEEVI UMMA Vs. ITHAPPIRI VARKEY

JUDGEMENT

(1.) THIS second appeal was referred to a Division Bench by one of us (Varadaraja Iyengar, J. ,) before whom it came on in the first instance under the following order of reference: "this case involves an important question of mohomedan Law, viz. , the extent of possession necessary to be given under a gift of property subject to a reservation of the usufruct for the life time of the donor and his wife, the donee being an invalid son already resident in the property. The case is therefore referred to a Division Bench. "

(2.) MAKKARU Mytheen, whose estate is in dispute died leaving behind him as his heirs, a widow - the third defendant, two sons -defendants 1 and 2, and two daughters - the plaintiffs 1 and 2. He owned no other property except the property scheduled to the plaint which consisted of a composite plot of garden and wet-land measuring 2 acres and 79 cents with trees and dwelling house besides. The 2nd defendant who was disabled in his limps was living along with his parents in the property. While so on 10. 6. 1118 MAKKARU mytheen executed Ext. II deed of gift in respect of the plaint entire property subject to certain terms and conditions detailed therein in favour of the 2nd defendant. MAKKARU Mytheen died a few months later in Karkadagom 1118. Subsequently the 2nd defendant-son, jointly with the 3rd defendant, widow executed Ext. I sale of the property on 30. 8. 1119 in favour of the 5th defendant, a stranger. The plaintiffs, who are the daughters of MAKKARU mytheen, as abovesaid have thereafter on 15. 8. 1120 instituted this suit questioning the validity of Ext. II gift and Ext. I sale and praying for partition by metes and bounds of their 5/10 share in the entire property, as co-heirs, to their father, along with the defendants 1 to 3. The main grounds of attack against Ext. II gift taken in the plaint as originally laid was that it had been obtained by 2nd defendant through fraud and misrepresentation and undue influence. These grounds are not now of any importance. But we are concerned with two further grounds which the plaintiff was allowed to introduce later on by way of amendment of plaint viz. , (1) that the gift amounted to the creation of a life estate and vested remainder, and (ii) that the gift was not followed by possession, both being alleged to be invalidating circumstances under Mohomedan Law. The suit was contested by the 5th defendant alienee. According to him the gift deed was in no way invalid and the suit was totally misconceived.

(3.) LEARNED Counsel for the plaintiffs, appellants urged his first ground of invalidity of Ext. II gift by saying that there was under ext. II a reservation of a'life estate' in the donor and his wife and a gift only of a 'vested remainder' in favour of the 2nd defendant and relied on the early cases in Humeeda v. Budlum (1872) 17 W. R. 525, and Abdul Gafur v. Nizamuddin (1892) 17 Bom. 1, decided by the Privy Council "that a life estate does not seem to be consistent with Mohamedan usage and there ought to be very clear proof of so unusual a transaction" and also on Abdul Wahid v. Nuran Bibi,11 Cal. 597, also a decision of the Privy Council "that such an interest as a vested remainder did not seem to be recognised by Mahomedan law". But the position on this subject has however been made clear by the latest decision of the Privy Council in Nawazish Ali Khan v. Ali Raza Khan, AIR 1948 PC 134. Referring to the expressions 'life estate' and 'vested remainder' their Lordships stated as follows: "in their Lordships' opinion this view of the matter introduces into Muslim law legal terms and conceptions of ownership, familiar enough in English law, but wholly alien to Muslim law. In general, Muslim law draws no distinction between real and personal property, and their Lordships know of no authoritative work on Muslim law, whether the Hedaya, or Baillie or more modern works, and no decision of this Board which affirms that Muslim law recognises the splitting up of ownership of land into estates, distinguished in point of quality like legal and equitable estates, or in point of duration like estates in fee simple, in tail, for life, or in remainder. What Muslim law does recognize and insist upon, Is the distinction between the corpus of the property itself (ayn) and the usufruct in the property (manafi ). Over the corpus of property the law recognizes only absolute dominion, heritable, and unrestricted in point of time; and where a gift of the corpus seeks to impose a condition inconsistent with such absolute dominion the condition is "rejected as repugnant;' but interests limited in point of time can be created in the usufruct of the property, and the dominion over the corpus takes effect subject to any such limited interests. " Their Lordships added: "the first duty of the court is to construe the gift. If it is a gift of corpus, then any condition which derogates from absolute dominion over the subject of the gift will be rejected as repugnant; but if upon construction the gift is held to be one of a limited interest the gift can take effect out of the usufruct, leaving the ownership of the corpus unaffected except to the extent to which its enjoyment is postponed for the duration of the limited interest. " It follows therefore that while in case of a gift of the corpus, no conditions can be imposed, right in respect of the usufruct may be granted for a limited period or for the life-time of a grantee. The right to take the usufruct is directly connected with the notion of time or duration. If it is found on construction of a deed of gift that it is a transfer only of limited interest in the usufruct, the ownership of the corpus will not be affected and would be valid as ariat. Construing the gift Ext. II here we find that the donor without retaining any dominion over the corpus has added only a condition that the whole of the usufruct would be in his use for his life time and thereafter to his wife for her life time. Such conditions as seen above would be perfectly valid. See also Nawab Umjad Ally v. Mohumdee Begam, II MIA 517, where a transfer of Government promissory notes to a son subject to the payment of the recurring income to the donor during his life time was held to be not in any way invalid, and Md. Abdul Ghani v. Fakhr Jahan,1922 PC 281, where a deed which was intended to operate as an immediate and irrevocable disposition of all the donor's property subject to the reservation for her own use during her life time of the usufruct of the property was construed as a gift valid under Mahomedan Law.