K. VEERANKUTTY Vs. PATHUMMAKUTTY UMMA AND ORS.

JUDGEMENT

(1.) THE Order of Reference to the Bench sets out the point for decision as depending on the construction of the gift deed, Exhibit A -2 which, if interpreted as creating a life estate with a vested remainder would raise for consideration the validity of such an estate under the Muslim Law; but in our opinion a true and proper construction of the deed leads to the conclusion that no life estate is thereby created in favour of the donor Muhammad Kutti. The document after reciting the properties dealt with thereunder proceeds as follows:

(2.) AS stated in the order of reference the question whether the Muslim under the Muhammadan Law can create a life estate with a vested remainder would have been decided by a Bench in Syed Mohamed v. Kairum Bivi, (1954) 1 M.L.J. 673, had it not been for the fact that the case was decided on the interpretation of the settlement deed and therefore a decision on the general question became unnecessary. The learned Judges in that case quoted a passage from the decision in Nawazish All Khan v. Ali Raza Khan, (1948) 2 M.L.J. 303 which runs as follows:

(3.) IN Muhammad Abdul Ghani v. Fakhr Jahan Begam, (1922) 43 M.L.J. 453 :, L.R. 49 IndAp 195 :, I.L.R. 44 All. 301, the same Tribunal discussed the reasoning in Nawab Umjad Ally Khan v. Mohumdee Begum, (1867) 11 M I.A. 517, which related to a Shia case in its application to a Sunni Muslim and held that no distinction can be made between the two. It is stated at page 314 that the reservation of the usufruct did not, by itself, make the gift of the property in question void under the Muhammadan Law, and that applies not only to Shias but also to Sunnis. At page 315, they observe as follows: