M SYED MYDEEN Vs. M S KHAJA MOHIDEEN

JUDGEMENT

(1.) Very rarely do interesting question on Mohamedan Law fall for consideration. The present appeal poses two nice questions for solution.

(2.) Let me now turn to facts which are not in dispute. Indeed, the disposal of this appeal depends upon the construction of a deed of gift, executed by the grandfather of the respondents, by name, Myatti Mohammedu Masthan Lebbai. The document is marked as Ex.A-1, dated 9.3.1939. I will be referring to the relevant portions in the said document in due course.

(3.) According to the respondents who came forward with O.S.No.779 of 1975 on the file of the District Munsif"s Court, Tirunelveli, under the said gift deed, the suit properties are to be enjoyed by their father for his life and thereafter by the respondents absolutely. Also according to the respondents, the true intention of the settlor (their grandfather) as per the terms of the deed read as a whole is that their father should enjoy the usufructs of the property only without any power of alienation of the corpus and after his lifetime, the respondents, his sons are to enjoy the property taking the corpus absolutely. It may be stated at once that as the respondents" father is still alive, the suit is instituted for a bare declaration that the alienations made by their father in favour of some of the respondents or in favour of the vendor of some of the respondents would not bind their interests, but would only be valid during the lifetime of their father. The common defence is that under Ex.A-1, an absolute interest is conferred on the respondent"s father, that the subsequent clause derogating from the original grant of absolute title is invalid in law, that, therefore, the respondent"s father is absolutely entitled to the suit property and that consequently the suit shall fail. I am not referring to other defences, because those do not arise for consideration in this second appeal.