ALIMAMMA Vs. AMADE BEARI

JUDGEMENT

(1.) This second appeal turns on the construction of Exhibit C which purports to be a wakf deed giving certain property to two minor girls. The deed Exhibit C says that the two girls may enjoy the property from generation to generation according to female descent. Then it goes on to state that they should perform charities on the anniversary days of their ancestors in the house situated in the Bagayat of the land and that they should not alienate the property in any manner and that if any alienations were made, they would be void. It concludes that their male descendants and their descendants and the husbands of the female descendants shall have no reason to claim any manner of right in the property. One of the donees died and her husband and her son who are the plaintiffs have filed this suit for partition. The defence of the defendants was that under the wakf deed the plaintiffs had no right to the property presumably on the ground that the donee's husband and the son were male heirs. The written statement affirmed that the document was a wakf deed and also raised other defences as regards moveables and other items of property claimed in the plaint. The District Munsif was of opinion that though the deed purports to be a wakf deed, it was really a deed of gift. The District Judge also was of that opinion. He says: Exhibit C is described as a wakf deed but it is really a gift deed in favour of the two sisters. That the two sisters were required to perform dhana dharma, etc., does not in any way show that they were not given absolute right in the properties. The provision in Exhibit C that the properties were to descend only in the female line is certainly opposed to the rule of Muhammadan Law and is, therefore, invalid. It is clear from the documentary evidence that the two sisters had absolute interest in the plaint property and that the plaintiffs as the heirs of the deceased Athijamma are entitled to a share in it.

(2.) Although in the Lower Court no question was raised as to the plaintiffs not being entitled to anything even assuming that it is a deed of gift, it is contended before me that the plaintiffs would have no title because the provision in the deed of gift that the property should descend only in the female line is invalid and that because of the restrictions in regard to alienation they were only entitled to life-interest at best. Reliance is placed on Das a Naicken V/s. Kunha Ahamed Koya (1925) 51 M.L.J. 69 and it is argued that the whole transaction is invalid, which, if passed, would cut at the root of both the plaintiffs and the defendants title. Reference is made to Madura Hindu Permanent Fund V/s. Kamakshi Animal (1925) 50 M.L.J. 355 as suggesting that at least the donees will have a life-interest in the property and on the death of the donees" the other would get the property. Reference has been made to Amjad Khan v. Ashraf Khan (1929) 57 M.L.J. 439 (P.C.) and it is argued that the heirs of one of the donees under a deed which contains invalid clauses as to the remainder would not get an absolute estate but would get only a life estate. It is argued that this last decision overrules the several previous decisions on the point. It has been decided in numerous cases that where a gift is made by a Muhammadan of a life estate with remainder to another person the donee takes the property absolutely, the further conditions being treated as void. I may refer to the decision in Marangami Rowthen V/s. Nagur Meera Labbai (1912) 24 M.L.J. 258 where all the authorities are collected. The learned Judges observed: The life estate is granted to Ismail Ammal in consideration of the Mahar and share due to her according to Muhammadan Law and the remainder is granted to Nagore Meeranna in consideration of the share due to him and the release of his rights to a share in the other properties belonging to the donor. The conveyance of an interest in remainder or interests in future has been frequently held to be invalid according to Muhammadan Law. Where a life estate is given with remainder to another person, the donee of the life estate takes the property absolutely.

(3.) The learned Judges referred to (a) Kasamally V/s. Currimbhoy , (b) Muhammad Ebrahim v. Abdul Latif , (c) Abdul Karim Khan V/s. Abdul Qayam (1906) I.L.R. 28 A. 342, (d) Muhammad Shah V/s. Official Trustee of Bengal (1909) I.L.R. 36 C. 431, (e) Musammat Hemade v. Musmmat Bulden and Government (1871) 17 W.R. 527 (P.C.) and (f) Abdul Gafur v. Naizamuddin (1893) I.L.R. 17 B. 1 (P.C.). Mulla in his book on "The Principles of Muhammadan Law" states thus: When a gift is made subject to a condition which derogates from the completeness of the grant, the condition is void and the gift will take effect as if no condition were attached to it.