NABOOMA Vs. KHEDAR HUSSAIN

JUDGEMENT

(1.) I think this appeal should be allowed. The plaintiff who is the appellant in this Court brought this suit as one of the heirs and legal representatives of one deceased Rasul Bi, for the recovery of his share of certain property made a gift of to her by her husband. The question turns upon the construction of the deed of gift Ex.-A. The Court of first instance granted the decree in favour of the plaintiff, but that was reversed by the lower appellate Court. The ground on which the lower appellate Court reversed the decree was that Ex. A which purports to be a deed of gift is not really a deed of gift but a deed of family arrangement. I am not satisfied that any Useful purpose can be regarded as having been served by calling a clear deed of gift as a deed of family arrangement. The provision in the deed is to the effect that Rasul Bi should take the property and one of the clauses is to the effect that she, like the other donees, should have absolute powers of disposal over the property. But there is another clause in the same deed which is to the effect that she should enjoy the property during her lifetime, and whatever may be left at her death should go to certain third parties and not to the heirs and legal representative of Rasul Bi, that lady. The question then is whether under the Mahomedan law it is competent to a person to give by way of gift the remainder of property which is made over to a person. It is clear on the authorities cited, Meerangami Rowthen V/s. Nagur Meera [1913] 24 M.L.J. 258], and the other oases referred to and discussed by the learned Judges in that case, that no such grant can be validly made by a Mahomedan. The principle would seem to be that as such a gift cannot be accompanied by possession of property the Mahomedan law refuses to recognize the validity of such rights. In this case it is perfectly clear that what was given after the lifetime of Rasul Bi was intended and only to be regarded as the remainder subject to the life interest. If such an estate ban be created and made the subject of a valid gift by a Muhammadan it follows that the interest of those third parties ought to be recognized. There are the words of absolute gift in the first instance and, therefore, the conditions, subsequent on the happening of which there is to be the gift over in favour of third parties should be regarded as invalid. The gift therefore to Rasul Bi must be regarded as an absolute gift, and it follows from that on her death her heirs and legal representatives will inherit the property. The Court of first instance granted a decree of the one-sixth-and there is no dispute about that-to the plaintiff.

(2.) Another argument was adduced by Mr. Sitaram Rao on the ground that the deceased lady, from whom or through whom the plaintiff claims, consented to the condition set out in the document. But I am surprised that oral evidence to that effect should have been allowed to be received. If the condition is regarded as contained in the deed no evidence was necessary, and if by that it was sought to add to the terms of the grant in any manner it should have been rejected. In any case it is perfectly clear that no case was directly or pointedly raised on behalf of the defendants based on any such undertaking on behalf of Rasul Bi. That contention, therefore, also fails.

(3.) The decree of the lower appellate Court dismissing the suit is set aside and that of the Court of first instance is affirmed.