SHAIK KHATUM BIBI Vs. MAHAMAD ZAHINA BI

JUDGEMENT

(1.) The appellants are the legal representatives of the plaintiff, whose suit for a declaration that a settlement, dated 7th May, 1949, executed by her in favour of her daughter-in-law and brother's daughter, the defendant, was vitiated by fraud and misrepresentation and otherwise invalid under Mahomedan Law, was dismissed by the Courts below.

(2.) On 27th January, 1949, Abdul Razak Saheb, the son of the plaintiff and husband of the defendant executed a deed of settlement, Exhibit B-1, in favour of his mother and wife giving them a house in equal moieties and reserving to himself a right to be paid a sum of Rs. 8, per month for his maintenance by each of the donees. On 7th May, 1949, the plaintiff executed a deed of settlement in favour of the defendant, Exhibit B-2, giving the half share of the house which she got under Exhibit B-1 to the defendant, reserving to herself a life-interest therein. Exhibit B-2 was duly registered. The plaintiff brought the present suit on 25th November, 1949, for a declaration that Exhibit B-2 was vitiated by fraud and misrepresentation and was also invalid and ineffective under the Mahomedan Law. The Courts below dismissed the suit finding both points against the plaintiff. The finding that Exhibit B-2 was not vitiated by fraud or misrepresentation is one of fact and is binding upon me in second appeal. The gift to the defendant under Exhibit B-2 is challenged as invalid under the Mahomedan Law on two grounds : (1) that a life-estate in the property had been created in favour of the plaintiff and only a vested remainder had been conferred upon the defendant and (2) that there was no delivery of possession of the property gifted to the defendant. The relevant portion of Exhibit B-2 is as follows :-

(3.) I have to construe this document and ascertain the intention of its author from its terms. The intention has to be gathered from the words found in the document without substituting the presumed for the expressed intention. At the same time, I must bear in mind that the parties were Moslems and if, without doing violence to the terms of Exhibit B-2 an interpretation which will effectuate rather than one which will invalidate the gift is possible, I may lean to such an interpretation. Notwithstanding defects or ambiguities in expression, ut res magis vale at quam pereat, " a deed shall never be void where the words used may be applied to an intent to make it good."