Lancelot Sanderson, J.
1. This is an appeal by Amjad Khan, son of Salar Khan, who was the original plaintiff in the suit, against two decrees of the Court of the Judicial Commissioner of Oudh, dated December 15, 1924.
2. The suit was brought by Salar Khan to recover possession of certain properties specified in the plaint, and mesne profits.
3. The title of Amjad Khan, hereinafter called the plaintiff, to two specific plots purchased by Musammat Waziran has been declared by both the Courts in India, and no question with regard to these plots arises in this appeal.
4. The dispute relates to proprietary shares in eleven villages.
5. The shares belonged to one Qulara Murtaza Khan.
6. It was alleged on behalf of the plaintiff that Ghulam Murtaza Khan made a gift of the said shares to his wife, Musammat Waziran, by a registered deed dated January 17, 1905, and put her in possession of the property, which was the subject of the gift; that Ghulam Murtaza Khan died on February 6, 1906, and his wife died on November 18, 1909, leaving her brother Salar Khan, the lather of the appellant, her sole heir; and that on the death of Salar Khan the plaintiff appellant became entitled to the property in question.
7. The first two defendants are the nephews of Gbulam Murtaza Khan, who, it was alleged took possession of the properties in suit on the death of Musammat Waziran; the other defendants are transferees from the first two defendants.
8. The learned Subordinate Judge, who tried the suit, came to the conclusion that the above-mentioned deed of January 17, 1905, was in the nature of a family settlement, that Ghulam Murtaza Khan gave to his wife one-third of the property absolutely and a life estate only in two thirds of the property which on his death was to revert to his heirs; and he made a decree accordingly.
9. The plaintiff appealed to the Court of the Judicial Commissioner of Oudh. The defendants Ashraf Khan, Basharat Khan and Nisar Ali Khan also filed an appeal.
10. The two appeals were heard at the same time. The learned Judicial Commissioners, though differing as to the reasons agreed as to the conclusion, and directed on December 15, 1924, that the plaintiffs' appeal should be dismissed, that the defendants' appeal should be allowed and that the plaintiffs' suit should be dismissed except in respect of plots 397 and 618, which should be shown as having been decreed to the plaintiff. The two last mentioned plots are those as to which no dispute arises in this appeal.
11. On January 18, 1894, Ghulam Murtaza Khan made a will, and on the same day executed what was called an agreement, by which he made a declaration that he would remain in possession of the properties comprised in the will as long as he lived, but that he should not have power to alienate the same.
12. On January 17, 1905, Ghulam Murtaza Khan executed the deed, on which the decision of this case depends.
13. The terms thereof are as follows:-
I am Ghulam Murtaz Khan son of Sarfaraz Khan, caste Bhatti, resident and Zemindar of Mubi-ud-dinpur, hamlet of village Jamoli, pargana Mawai Maholara, tahsil Ram Sanehighat, district Bara Hanki.
Whereas I am co-sharer of the following shares in the village comprised in Talnqa Mawai, in the above pargana and district, at present valued at Ks, l?,000. Whereas I am in possession and occupation of the same and whereas in respect of the same I have already executed a will and an agreement dated January 18, 1894, but as I want to avoid any difficulty to my wife in obtaining possession over the willed property after me, I, therefore, by means of this document, have made a gift without consideration of ray entire property detailed below with all external and internal rights and without the exception of any right or part, to my wife Mussammat Waziran, resident of Muhi-ud-dinpur hamlet of village Jamoli, in the above pargana and district, subject to the oondition that, out of the entire property mentioned in the deed of gift she shall remain in possession of shares worth Rs. 5,000 with power to make at her pleasure any sort of alienation like mortgage, sale or gift in respect thereof and that, as to the rest, worth Rs. 10,000, she shall not possess any power of alienation but she shall remain in possession thereof for lifetime. After the death of the donee the entire property gifted away by this document shall revert to the donor's collaterals, viz,, Ashraf Khan, Basharat Khan and their heirs, in equal shares, and those heirs of mine shall become owners with full proprietary powers, and the own heirs of the donee lady shall not inherit the same and the donee and my aforesaid heirs have accordingly agreed and consented to this. I have put the lady donee in possession of the property gifted to her, and therefore from to-day I have ceased to possess any right or claim in respect of the gifted property, and my wife, Masammat Waziran, from to day became owner and possessor of the aforesaid property in accordance with the terms of this deed. Au to shares worth Rs. 5,000, gifted to the said lady, she has power to ohoose the same from any village she likes, or if she likes, she can take shares worth Rs. 5,000 from all the villages.
Wherefore these few presents by way of a deed of gift have been executed, and got registered with the consent of the reversioners, viz, Ashraf Khan and Basharat Khan, so that it serves as an authority and be of use in time of need.
14. An issue was raised in the trial Court whether Ghulam Murtaza. Khan was a Hanafi Mussulman or whether he belonged to the Shia Sect.
15. The learned Subordinate Judge held that Ghulam Murtaza Khan was a Hanafi Mussulman and did not belong to the Shia Sect.
16. It appears from the judgment of Mr. Aahworth, one of the learned Judicial Commissioners who heard the appeal, that the decision of the learned Subordinate Judge on this issue had been impugned in one of the grounds of appeal presented by the defendants, but that the ground had not been pressed, and the appeal was decided upon the basis that the Mohammedan law applicable was the Hanafi law and not the Shia law.
17. In order therefore to constitute a valid gift inter vivos under the Mohammedan law applicable to this case, three conditions are necessary:-
(1) Manifestation of the wish to give on the part of the donor.
(2) The acceptance of the donee, either impliedly or expressly.
(3) The taking possession of the subject-matter of the gift by the donee, either actually or constructively. (See Mohammad Abdul Ghani v. Fakhr Jahan Begam (1922) L.R. 49 IndAp 920.
18. The main argument on the hearing of the appeal related to the question of what was the subject-matter of the gift by Ghulam Murtaza Khan. This depends upon the construction of the deed of January 17, 1905.
19. It was argued on behalf of the plaintiff appellant that by the deed Ghulam Murtaza Khan transferred the corpus of the property therein specified to his wife without any reservation, but subject to certain conditions of enjoyment; that if the said conditions were inconsistent with the transfer of an absolute interest in the property, the Mahommedan law applicable to this case would give effect to the transfer, and would not give effect to the conditions; and that the deed coupled with possession given to the donee constituted a good and valid gift of all the property comprised in the deed.
20. On the other hand it was argued on behalf of the defendant respondents that by the deed Musammat Waziran acquired merely a life interest in the property comprised therein, that such interest ceased on her death in 1909, and that inasmuch as the plaintiff's only claim to the property was as heir of Musammat Waziran, he had no title thereto.
21. The principle on which the plaintiff relied was that where it is clear that the intention of the donor is to make a gift to the donee of the corpus of the property comprised in the gift, and there is a condition attached that the donee should take a limited interest or should take it for life, under the Hanafi law the condition would be void and there would be a complete and absolute gift of the property : in other words it was argued that if a gift of tangible property is made subject to a condition inconsistent with full ownership on the part of the donee of the thing given, the gift is valid, but the condition void, see Wilgon's Digest, of Anglo-Mohammedan Law (1908 Edition).
22. Among other authorities reliance was placed by the learned Counselor for plaintiff appellant upon Muasamut Hummda v. Mueaamut Budlun and the Government (1872) 17 W.R. 525 for the purpose of showing that creation of a life estate by means of a gift inter vivos does not seem to be consistent with Mohammedan usage. It was held by the Judicial Committee that there ought to be very clear proof of so unusual a transaction, and that in that case there was no such proof. It should be noted that the facts of the cited case differ materially from the case now under consideration, inasmuch as in the present case there is before the Board the formal deed of gift, upon the true construction of which the decision must depend. Other authorities were referred to during the course of the argument, but in their Lordships' opinion it is not necessary to refer to them in detail, for the reason that the above-mentioned principles were not disputed by the learned Counsel for the defendant respondents: their case was based on the argument that the subject-matter of the gift in the deed of January 17, 1905, was a life interest only in the property and that it was not a gift to the wife of an absolute interest in the property with an inconsistent condition.
23. The material question then is what is the true construction of the deed. The intention of the donor is to be ascertained by reading the terms of the deed as a whole, and giving to them the natural meaning of the langauge used.
24. Their Lordships, basing their decision on the terms of the deed, are of opinion that the conclusion arrived at by the learned Judicial Commissioner Mr. Wazir Hssan, on this part of the case is correct, and that Musammat Waziran acquired merely a life interest in the property under the deed of January 17, 1905, together with a power of alienation over one-third of the property.
25. The donor by the terms of the deed purported to make a gift without consideration to his wife of the entire property detailed therein; he divided the property into two parts, one-third and two-thirds, with a view to giving his wife a power to alienate the one-third of the property or any part thereof by way of mortgage, sale or gift.
26. The words used in connection with the power of alienation point to the donor contemplating a possible alienation by his wife during her lifetime of the one-third or part thereof. It was further provided that after the death of the donee 'the entire property gifted away by this document' should revert to the donor's collaterals named therein.
27. It is to be noted that the provision as to reversion is not limited to the two-thirds over which the wife was to have no power of alienation, but it related to the 'entire property gifted away by this document.'
28. The 'entire property' was to revert to the collaterals, but it would, of course, be subject to any mortgage, sale or gift which the wife had power to make during her lifetime in respect of the one-third part of the property mentioned in the deed.
29. Reading the deed of January 17, 1905, as a whole and giving effect to all the terms thereof, their Lordships are of opinion that it does afford clear proof that the donor intended to make and did make a gift to his wife of a life interest only in the entire property comprised in the deed together with the above-mentioned power of alienation in respect of one-third of the property.
30. It was, however, further argued on behalf of the plaintiff that under the Mohammedan law, which is applicable to this case a transfer of a life estate could not be made by means of gift: in other words, it was argued that under the said law there could not be a transfer of any interest in property by way of gift inter vivos except an absolute interest.
31. In their Lordships' opinion, it is not necessary to express any opinion on the last-mentioned argument, because in view of the construction of the deed which their Lordships have adopted, the plaintiff appellant is on the horns of a dilemma. If the interest acquired by Musammat Waziran was of a life estate only, and if such an interest can be acquired under the Mohammedan law, by way of a gift, that interest came to an end on the death of Musammat Waziran, and the plaintiff claiming as her heir has no title to the property.
32. On the other hand if, as argued on behalf of the plaintiff, under the Hariafi law such a limited interest as a life estate could noib be transferred to Mussammat Waziran by way of gift inter vivos, then Musammat Waziran acquired no interest in the property under the deed of January 17, 1905, and the plaintiff, claiming as her heir, can have no title to the property.
33. For the above-mentioned reasons their Lordships are of opinion that the plaintiff appellant has no title to the property which is now in dispute in this appeal.
34. In view of this conclusion, it is not necessary for their Lord- ships to consider any of the other points raised in the appeal, as, for instance, the question whether there was delivery of possession as to which the learned Judicial Commissioners came to different conclusions. Their Lordships therefore will humbly advise His Majesty that this appeal should be dismissed with costs.
35. Upon a further application by the appellants on a point raised in reason 11 of their case, their Lordships do not think it necessary to add anything to the judgment. The point was made on an application for review in the appellate Court, and it was held that it was not open to the appellants. Their Lordships see no reason for differing from the appellate Court's decision in this respect.