K. Govindarajan, J.
1. Defendants 1 to 8 who succeeded before the trial Court and suffered decree in A.S.No. 277/1987, filed the above Appeal.
2. The plaintiff filed a suit in O.S.No.527/1982 on the file of the Sub-Court, Coimbatore for partition of the suit properties into 4 equal shares and allotment of three shares to the plaintiff and for a direction to the appellants herein4o render true and proper accounts regarding the rents realised from the suit 'A' schedule property for 3 years prior to the filing of the suit and directing them to pay 3/4th share due to the plaintiff and also for mesne profit.
3. It is not in dispute that that the suit property originally belonged to the mother of the plaintiff, Sara Bibi, who executed a settlement deed on 5.11.1952 in favour of her daughter who is the elder sister of the plaintiff, Fathima Bibi. Under the said document, she was given life estate and the vested remainder was given to her husband and unspecified heirs. Stating that the restrictions imposed in the document from getting absolute right by Fathima Bibi is contrary to Mohammedan law and also it is invalid and unenforceable, the plaintiff has come forward with the plea that Fathima Bibi is his sister, got the property absolutely and so after his death on 4.12.1974, as his brother, she is entitled 14/24 shares in the suit property. Sara Bibi also got 1/6th share and husband of Fathma Beevi, Kamaludin got 1/4th share. The balance that was available was 14/24th share and the plaintiffs succeed to the said share as residuary. It is also stated that when Sara Bibi, the mother died, her share was also taken by the plaintiff with the result the plaintiff became entitled to 3/4th share and Kamaludin, the husband of Fathima Bibi owned only 1/4th share. Defendants 1 to 8 could are the children of Kamaludin through his 2nd wife. On that basis, the plaintiff has come forward with the plea that defendants 1 to 8 could claim only to the said share, namely, 1/4th share. Defendants 9 to 15 are the tenants under the suit property. It is also stated that Kamaludin, the husband of Fathima Bibi executed a settlement deed on 13.7.1981 in favour of defendants 1 to 8. The plaintiff has come forward with the above suit on the basis of the said pleadings.
4. The 2nd defendant filed written statement which was adopted by defendants 3 to 5. The 10th defendant submitted to decree. Defendants 1, 6 to 15, though received notice, remained absent and thereby they were set ex-parte.
5. According to defendants 2, 3 to 5, in view of the settlement dated 5.11.1982 executed by Sara Bibi, Kamaludin, the husband of Fathima Bibi and his heirs have become the absolute owners of the property as Fathima Bibi under the settlement deed was given right only to enjoy the properties, i.e., to enjoy the usufruct. It is denied that Fathima Bibi is the absolute owner, as the restrictions cannot be sustained as it is against the Mohammedan law. From the written statement we are able to see that Kamaludin also died on 23.3.1982 before filing of the suit.
6. Though the suit is also with respect to 'B' schedule property, we are not dealing with the same in this appeal as the appeal is only with respect to 'A' schedule property.
7. The trial Court considering the pleadings, oral and documentary evidence, found that the case of the plaintiff that Fathima Bibi got absolute right under the settlement deed dated 5.11.1952 cannot be sustained and so the plaintiff is not entitled to any share as claimed in the suit. With reference to the claim of the 2nd defendant on the basis of adverse possession and also the defence that the suit is barred by limitation, the Trial Court negatived such claims. It is also found that the settlement deed dated 13.7.1981 executed by Kamaludin is valid in law and the plaintiff has no right to question the same. With respect to 'B' schedule property, the trial Court found that no such property is in existence and so the plaintiff cannot sustain the suit with respect to the same. On the basis of the said finding, the trial Court dismissed the suit. Aggrieved against the same, the plaintiff preferred an Appeal in A.S.No.277/1987. Since the plaintiff died pending appeal, the present appellants 2 to 13 were impleaded as legal representatives in C.M.P.No. 17212 of 1996 by an order dated 30.1.1997. The learned Judge found that what Sara Bibi intended to give was the absolute right with the condition that Fathima Bibi cannot alienate the property as the intention of the mother was to give benefit to the daughter. On that basis, the learned Judge came to the conclusion that the deed has to be construed as a gift of the corpus with certain restrictions which are bad in law. On the basis of the said finding, the learned Judge allowed the appeal by setting aside the judgment and decree of the trial Court. Hence the above Appeal.
8. Mr.T.R.Mani, learned Senior Counsel appearing for the appellants submitted that what is prohibited under Mohamedan law is only gift of restricted estate and not corpus to a second donee giving right to enjoy usufructs to the 1st donee. Learned Senior Counsel traced out the history of law on this aspect by citing a number of decisions. He also submitted that the intention of the donor is that the property should go to Fathima Bibi's husband and his children and not the heirs of the donor. To emphasise the same, he also relied on the recitals in the document, Ex.A3. According to him, since corpus is not given to Fathima Bibi and only right to enjoy was given under Ex.A3, the learned Judge is not correct in holding that the property devolved on Fathima Bibi, as if the restrictions under the document cannot be sustained. According to him, by getting possession by the daughter, the said gift was accepted by her and that acceptance has to be taken as acceptance on behalf of the 2nd donee also.
9. Mr. N.V.N.Sridhar, learned counsel for the respondents/plaintiffs equally traced out the law on Mohamedan gifts and cited judgments of this Court, Privy Council and of other High Courts. According to him, what was given to Fathima Bibi is a corpus itself with restrictions not to alienate the property and not the right to enjoy the usufructs alone, as submitted by the learned Senior Counsel appearing for the appellants. Learned counsel further submitted that the intention of the testator is to give her daughter the properties with complete right of ownership and so the restriction to alienate the property cannot be sustained as it is not valid in law. The other clause giving right to Kamaludin after the death of Fathima Bibi is also void as the said recital has to be construed as a gift in futuro. On that basis, learned counsel submitted that the learned Judge is absolutely right in decreeing the suit and the appeal preferred by the defendants cannot be sustained.
10. On the basis of the above said pleadings and arguments, the following points arise for determination in this appeal.:-
(1) Whether Fathima Bibi, sister of 1st plaintiff got absolute right under Ex.A3?
(2) Whether the claim of the defendants under the settlement deed Ex.A3 is sustainable in law?
11. Before dealing with the issues in the above points on merits, we are inclined to deal with the law on the issue regarding gift under Muslim law. In view of Section 129 of Transfer of Property Act, no provision under the Act is made applicable to gift by a muslim and only Muslim law alone is applicable. As stated by The Hon'ble Mr. Justice Hidayathullah, in the book Mulla's principles of 'Mohamedan Law', the expressions 'Mahomedan an Mahomedanism' are not correct and proper expressions are 'Islamic law' and 'Muslim Law'. To justify the title of the Book, it is stated that the expression was coined by the English. Chapter XI of the said Book deals with the gifts (Hiba). Section 138 defines gift as 'a transfer of property, made immediately, and without any exchange', by one person to another, and accepted by or on behalf of the latter.
12. Section 149 deals with three essentials of a gift. According to the said provision, it is essential to the validity of a gift under Muslim law, and there should be -
(1) a declaration of gift by the donor;
(2) an acceptance of the gift, express or implied, by or on behalf of the donee; and
(3) delivery of possession of the subject of the gift by the donor to the donee as mentioned under Section 150.
If only these conditions are complied with, the gift is complete. The ownership of the property is transferred to the donee only on completion of the above said three essential requirements.
13. Section 150 deals with delivery of possession. According to the same, delivery of possession of the gift may be actual or constructive. Section 162 prohibits gift in futuro which reads as follows:-
'162. Gift in futuro - A gift cannot be made of anything to be performed in futuro, nor can it be made to take effect at any future period whether definite or indefinite.
It is necessary for us to extract the illustration mentioned under the said section.
'(a) A makes a gift to B of 'the fruit that may be produced by his palm tree this year.' The gift is void as being a gift of future property.
(b) A Mahomedan executes a deed in favour of his wife purporting to give to the wife and her heirs in perpetuity Rs. 4,000 every year out of his share of the income of certain Jaghir Villages. The gift is void, as being a gift of a portion of the future revenue of the villages.
(c) A executes a deed of gift in favour of B, containing the words 'so long as I live, I shall enjoy and possess the properties, and I shall not sell or make gift to anyone, but after my death, you will be the owner.' The gift is void, for it is not accompanied by delivery of possession and it is not to operate until after the death of A.
(d) A is entitled to receive a specified share in the offerings made by pilgrims at a certain shrine. A may make a valid gift of the right to receive such share. Here the thing gifted is 'the right of the donor to receive a fixed share in the offerings after they have been made'.
14. Under Section 163, it is prohibited to give a gift to take effect on the happening of a contingency. Section 164 deals with gift with a condition, which reads as follows:-
'164. Gift with a condition:- 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 conditions were attached to it.
Illustrations1
(a) If a Sunni Mahomedan says, 'this mansion is to three comree (for thy life), and when thou art dead it reverts to me,' the gift is lawful, and the condition is void;
The result is that the donee takes an absolute interest in the mansion, and not only a life-interest, this is the legal effect of the gift. Similarly, if a house is given to A for life, and after his death to B, the legal effect of the gift is that A takes the house absolutely, and B takes nothing. The same rule applies to a testamentary gift (v). But if the gift is not of an absolute interest with a condition of defeasance but of a limited interest it would appear to be valid as a gift of the usufruct. See Section 55(1).
(b) A makes a gift of Government promissory notes to B, on condition that B should return a fourth part of the notes to A after a month, the condition is void and B takes an absolute interest in the notes: see Baillie, 547: Hedaya 488. (Here the condition relates to the return of part of the corpus.)
(c) A makes a gift of a house to B on condition that he shall not sell it, or that he shall sell it to a particular individual, or that B shall give some part of it in iwaz or exchange. The condition is void, and B takes an absolute interest in the house: Baillie, 547. See Section 165.
Restraint Against alienation:- In the case of a gift, a restraint against alienation, whether absolute or partial, is void. In the case of a transfer for a consideration, it is valid if the restraint is partial as where it is provided that the transferee shall not sell the property to any one but the members of the transferor's and transferee's family (w), but void if the restraint is absolute. See Transfer of Property Act, Section 10.
(d) A makes a gift of certain property to B. It is provided by the deed of gift that B shall not transfer the property. The restraint against alienation is void, and B takes the property absolutely.'
15. On the background of these provisions, now we are inclined to deal with the principles laid down in the decided cases on the subject.
16. The following judgments are relied on by the learned counsel on both sides:-
(1) Marangami Rowthen v. Nagur Meera Labbai, 24 M.L.J. 258; (2) Amjad Khan v. Ashraf Khan, AIR 1929 P.C. 149; (3) Alimamma v. Amade Beari, AIR 1930 Mad. 510; (4) Nawazish Ali Khan v. Ali Raza Khan ; (5) Siddiq Ahmad v. Willayat Ahmad, : AIR1952All1 ; (6) Veerankutty v. Pathummakutty Umma : AIR1956Mad514 ; (7) Duriesh Mohideen v. Madras State, : AIR1957Mad577 ; (8) Qhamrunnissa Begum v. Fathima Begum, 1968 (1) M.L.J. 470; (9) Md. Naziruddinv.Govindarajulu, : AIR1971Mad44 ; (10) Mrs. Hazara Bai v. Mohamed Adam Sait : (1977)1MLJ291 ; (11) Jameela Beevi v. Sheik Ismail, : AIR1979Mad193 ; (12) Kamarunnissa Begum and Anr. v. N.Babu and Ors., 1984 T.L.N.J. 33; (13) Syed Mydeen, M. v. M.S. Khaja Mohideen, 1986 (99) L.W.134; (14) Fathimuthu v. Ghouse Ahmed Maacayar : (1986)1MLJ412 ; (15) Chandma Bibi v. Sheik Mohamed Sahib and 3 Ors., 1997 (1) M.L.J. 391; (16) Ismail Gani v. Maim Ponn Pattu Beevi, : (1998)IIIMLJ64 ; (17) Abdul Samed v. Rabia Bibi and 14 Ors., 1998 (3) L.W. 485
17. From the above said decisions, we are able to gather the following principles laid down regarding the gift, under Muslim Law.
(1) The conveyance of an estate in remainder is invalid and where a life estate is given with a remainder to another person, the donee of the life estate takes the property absolutely, the further conditions being treated as void Amjad Khan v. Ashraf Khan, AIR 1929 P.C. 148 and Alimamma v. Amade Beari, AIR 1930 Mad. 510;
(2) Muslim law draws no distinction between real and personal property, and it does recognise the distinction between corpus of the property itself (ayn) and the usufruct in the property (manafi). Explaining the above said principles, it is held that if upon construction, the gift is held to be one of a limited interest the gift can take effect out of the usufruct, leaving the ownership of the corpus unaffected except to the extent to which its enjoyment is postponed for the duration of the limited interest. The said conclusion was arrived at on the basis that Muslim law admits only ownership unlimited in duration but recognises interests of limited duration in the use of property Nawazish Ali Khan v. Ali Raza Khan .
(3) There is no difference between several schools of Muslim law in their fundamental concept of property and ownership. Nawazish Ali Khan v. Ali Raza Khan
(4) The intention of the donor is to be ascertained by reading of the terms of the deed as a whole by giving the natural meaning to the language used therein for the purpose of understanding the intention of the testator before holding that the life estate in the corpus alone is given to the donee Siddiq Ahmad v. Willayat Ahmad, : AIR1952All1 .
(5) In a gift of corpus with the condition inconsistent with such absolute dominion, the condition is to be rejected but a gift of corpus with a reservation to collect the accruing income during the lifetime of the donor is valid and enforceable Veerankutty v. Pathummakutty Umma, : AIR1956Mad514
(6) The gift of corpus of estate to the sons with a condition to pay daughter certain sum every year in perpetuity held valid; Duriesh Mohideen v. Madras State, : AIR1957Mad577
(7) While considering the gift by close relations it is held that all that necessary is to establish a bonafide intention to gift and no change or transference of possession is necessary and acceptance of the gift on behalf of the minor may be express or implied Qhamrunnissa Begum v. Fathima Begum, 1968 (1) M.L.J. 470 and Jameela Beevi v. Sheik Ismail, : AIR1979Mad193
(8) The restriction on the power of alienation with the father of the minors as legal guardian by the donor under the Muslim Law is void as it is not open to the donor under Muslim Law to curtail the power of legal guardian when he gifts the property in favour of minors Md. Naziruddin v. Govindarajulu, : AIR1971Mad44
(9) Under Mohamedan Law life estate cannot be created by gift, then, if the person who got a right to enjoy the property under the gift deed cannot get any thing under the document Mrs. Hazara Bai v. Mohamed Adam Sait : (1977)1MLJ291
(10) The reservation made by the donee is an interest created in the usufruct for the duration of the lifetime of the donor and the domain over the corpus takes effect subject to that interest and so it cannot be construed as a condition inconsistent with the absolute dominion conferred on the donee nor can it be construed as a just reservation of right to be in possession of the property or a reservation of the right to manage or control the gifted property Kamarunnissa Begum and Anr. v. N.Babu and Ors., 1984 TLNJ 33.
18. Now we have to deal with the facts of the case on the basis of the above said legal principles. Before dealing with the issue in question, it is beneficial to extract the relevant portion in Ex.A3 settlement deed, which is as follows:-
19. From the above deed, we are able to cull out the following recitals: -
(1) Since Fathima Bibi is the daughter on whom Sara Bibi is having love and affection and also on the basis of her family benefits, the document was executed by the Sara Bibi.
(2) Sara Bibi settled the property in favour of Fathima Bibi, her daughter and possession was given on execution of the said document.
(3) Fathima Bibi has to enjoy the property without any power of alienation or encumbering in the property from the date of the document,;
(4) After the death of Fathima Bibi, the said property should go to Fathima Bibi's husband and his heirs;
(5) After the execution of the said gift deed, Sara Bibi and her heirs are not having any right in the property;
(6) Sara Bibi is not having any right to cancel the said document; and
(7) Sara Bibi had handed over the original documents, with respect to the property, to Fathima Bibi.
20. According to the learned Senior Counsel, Ex.B3 is not a contingent gift but it is a gift (Hiba of Ayn) giving corpus to the son-in-law with condition reserving right in usufructs (manafi) to the daughter and so it is a valid gift. This submission was made on the basis that the view prevailed to the effect that under Muslim Law the restricted right with such condition is nothing but a gift with repugnant condition and so such condition must fail and the gift must prevail as an absolute one, is no longer good law in view of the later decisions of the Privy Council starting from Alikhan's case, . On facts of this case, learned Senior Counsel also submitted that under Ex.B3, the corpus is given to Kamaludin, the son-in-law of the donor and his unnamed heirs (such heirs were not alive on the date of the gift). Otherwise, his submission is that the gift is both for ayn (corpus) to Kamaludin and manafi (usufructs) to Fathima Bibi, the daughter of the donor and so the gift is valid. Moreover, he submitted that all the three mandatory ingredients, namely, declaration, acceptance and delivery of possession had been complied with by the donor and donee. According to him. The acceptance of the gift by the daughter, Fathima Bibi, is enough to validate the gift.
21. On the other hand, the submission of the learned counsel for the respondents is that the gift is only in favour of the daughter, Fathima Bibi, with restriction not to alienate the property and so the said restriction cannot be valid. He has also submitted that the gift as mentioned under Ex.B3 in favour of Kamaludin is not in praesenti. On that basis, learned counsel submitted that the learned Judge is correct in decreeing the suit.
22. So, now we have to test the intention of the donor through the recitals of Ex.B3, which is extracted above to apply the abovesaid legal principles to the facts of the case.
23. The intention of the donor is very clear from Ex.B3. She wanted to help her daughter by settling the property. The donor has not only settled the property but also gave possession and the title deeds. No doubt the later portion of the gift deed Ex.B3 contemplates the right of the husband of Fathima Bibi and his heirs to get the property. Such a right under the document opens only on the date of death of Fathima Bibi as it is specifically stated
In view of the said specific recitals, it cannot be said that on the date of execution of Ex.B3, the corpus was given to the husband of Fathima Bibi and only right to usufruct was given to Fathima Bibi. The above said conclusion can be tested further on the basis of further recitals in the document. Admittedly, on the date of Ex.B3 itself, the husband of Fathima Bibi had no heirs. If really the donor wanted to give corpus to them on the date of execution of Ex.B3, the donor should not have included the heirs of kamaludin also, as such a gift to 'not beings' is invalid under Muslim Law. If the submission of the learned Senior Counsel is accepted then such a gift to 'not being' though along with the husband of Fathima Bibi, was not valid one. Hence, from the above, it is clear that the gift for corpus was not given to the husband of Fathima Bibi on the date of Ex.B3, as the donor herein was not having any right in the said property.
24. From the above, it is clear that the corpus was vested on Fathima Bibi. She has given up her right in the property, as stated in the document, Ex.B3 and Kamaludin did not get any right under Ex.B3 on the date of the said document. So the corpus devolved only on Fathima Bibi with restriction on alienation of the property. Since the said restriction cannot be enforced, Fathima Bibi had become owner of the property absolutely and other clauses giving property to Kamaludin also cannot be enforced on the basis that Fathima Bibi got only restricted right to enjoy usufructs.
25. As stated already, even under the document Ex.B3, it stated that only after the lifetime of Fathima Bibi, Kamaludin can get right in the property. The said recital has been properly understood by the defendants by stating in the written statement to the effect that 'thereafter, after her death (Fathima Bibi), the property has become the absolute property of Kamaludin. It is not their case that Kamaludin has become owner of the property even on 5.11.1952 so as to enable them to claim that Kamaludin was given corpus on 5.11.1952 and restricted interest was given to Fathima Bibi in the said property. Such a stand was taken even under Ex.A9, the reply notice issued on behalf of the defendants. Though in the evidence, the 2nd defendant as D.W.1 has come forward with the evidence that the right in the property had passed on to Kamaludin even on 13.7.1981, the date of the gift deed, in the absence of any plea to that effect, the said evidence cannot be relied upon. Moreover, the said evidence is contrary to the pleading set out earlier. From the above, it is clear that the gift in favour of Kamaludin and his heirs cannot be construed as a transfer in praesenti and so the submission of the learned Senior Counsel that a gift giving restricted interest to one donor while giving gift of corpus to another donor is valid, cannot be applied to the facts of the present case, in view of the above said discussion. It also cannot be said that the gift mentioned under Ex.B3 in favour of Kamaludin was with the intention to give corpus in praesenti.
26. While construing the gift of Sara Bibi, we can bring out her intention to give the property only to her daughter, by parting with her entire right and since Kamaludin was not given any corpus on 5.11.1952, the date of execution of Ex.B3, it has to be taken that Ex.B3 is a gift of corpus in favour of Fathima Bibi and so the other restrictions are void and cannot be enforced. Moreover, the gift in favour of Kamaludin has to be construed only as a gift in future which is void under Muslim Law.
27. In view of the above discussion, we are of the opinion that the reasoning given by the learned Judge in the judgment dated 21.7.2000, to reverse the judgment of the trial Court dated 3.2.1987, cannot be assailed . Hence the above Appeal is dismissed. No costs.