HAYARA BAI Vs. MOHAMMED ADAMI SAIT

JUDGEMENT

(1.) IN this originating summons the question is about the interpretation of a particular clause in a settlement deed. The first defendant who is the brother of the plaintiff executed the settlement deed dated 1-6-1963 in favour of the plaintiff. Three items of properties are dealt with in the settlement deed. In items 1 and 2 the plaintiff had a 1/3rd share in her own right. The first defendant had the remaining 2/3rd share. The whole of item 3 belonged to the first defendant. Under the settlement deed, the first defendant gifted his 2/3rd share in items 1 and 2 and the whole of item 3 to the plaintiff and her children. The relevant clause which requires interpretation is in the following terms: "that in consideration of the premises the settlor hereby settles and transfers to the settlee for her life without any right of alienation and thereafter on her children both male and female absolutely the properties mentioned in the schedule thereto and that the settlor has put the settlee in possession of the said properties and the settlee shall possess and enjoy the said properties free from the claims of the settlor or any person or persons claiming under him. " defendants 2 to 9 are the children of the plaintiff among whom the last two were born after the execution of the above settlement deed.

(2.) ACCORDING to the plaintiff, the clause in the settlement deed should be interpreted as an absolute gift of the properties to her but with a condition not to alienate the same, and that the condition is invalid.

(3.) THE contention of Mr. Amjad Nainar learned counsel for the plaintiff is that the gift of life-estate is unknown to Mahomedan Law, that if under a document of gift life-estate is sought to be created it must be construed as a gift and a condition, which condition is invalid and that the gift which is mentioned as of a life-estate operates as an absolute gift. This contention is not acceptable.