1. Musammat Tamanna Begam executed a tamliknama, whereby she made one-third of certain property waqf and pro-vided as follows with regard to the remaining two-thirds:
My son, Naki Khan, will remain owner (malik) of the remaining two-thirds and of the said two-thirds, Naki Khan will remain fall and absolute owner of one-third (malik kamil o katai), and he shall have the powers of an owner with respect to it, and Naki Khan will be owner (malik) of the other third also, and his name will be entered in the khewat, but the income of it is given for the maintenance of my minor grandson, Muhammad Shaft Khan, son of Muhammad Taqi Khan, deceased. According to law, Naki Khan is guardian of Shaft Khan, he must give the income of that one-third for the maintenance of the minor and Naki Khan will not have the power of transfer over that one-third during the life of the minor.
2. Soon after, Naki Khan sold the whole two-thirds of the property to the respondent, Lalijau, who is said to be a prostitute. In the present suit, the appellant, Shaft Khan, suing by his next friend, prays for possession of one third of the property and for cancellation of the deed of sale in favour of the respondent. The defence is that the whole two-thirds of the property were given to Naki Khan and under the Muhammadan Law, the conditions that he should not have power to transfer portion of the property and should make over the profits of that portion to Shaft Khan, are invalid and must be disregarded.
3. The Munsif held that Shaft Khan was entitled to the profits of one-third of the property but act to possession of that share and passed a decree accordingly.
4. Both parties appealed, and the District Judge held that all the conditions regarding one-third of the property were void, and that the respondent was not bound to make over the profits of that share to the appellant. Accordingly, he dismissed the appeal of Shafi Khan, allowed the appeal of Lalijan, and dismissed the suit of Shafi Khan with costs. Shafi Khan has appealed to this Court. S.A. No. 1119 is his appeal against the decree passed on his appeal to the District Court. S.A. No. 1120 is his appeal against the decree passed on the respondent's appeal to that Court.
5. It is, in the first place, contended that the tamliknanta gives one-third of the property to Shafi Khan out and out. If this view is correct, the appellant must succeed. I think, however, that it is impossible to construe the tamliknima as giving Shaft Khan one-third of the property out and out. It is possible to construe the deed as giving him one-third for life and to regard the provision that it shall stand in the name of his uncle as an arrangement for the management of the property. But it appears to me that according to the correct construction of the deed, Naki Khan takes the whole two-thirds out and out and the intention was to bind him to allow Shafi Khan to have the profits of one-third for his life. The question is whether such a condition is permitted by the Muhammadan Law. The parties are Sunnis. According to the Hanafi law, any derogation from the completeness of a gift is null, and if the intention to give to the donee the entire subject-matter be clear, subsequent conditions derogating from or limiting the extent of the right are null and void. la other words, according to the Hanafi law, the gift is valid and the condition is void. (Ameer Ali on Muhammadan Law, Vol. I, page 77). According to the same authority, if a man was to give a piece of land to another on the condition that he should give to him the whole produce of the land in perpetuity, the condition would be had, but it is otherwise with a gift by A to B. without any restriction on the power of disposition but subject to the condition that B. should pay periodically to A. a part of the usufruct of the property, both the gift and the condition would be valid, and if B. should alienate the property, the assignee would take it subject to the condition. In these cases, says the learned author, the reason is obvious for the reservation of an interest by the donor for himself or for himself and his heirs, does not interfere with the right of property vesting in the transfer by the act of transfer. For these propositions, he cites the case of Nawab Umjad Ali Khan v. Mohamdee Begum 11 M.I.A. 517 : 10 W.R. 25 (P.C.) and the Nawadir an authority which I have been unable to consult. Sir Roland Wilson (page 334) states the law in the same way, but doubts the correctness of the decision in, the case just cited. That was, however, a decision of their Lordships of the Privy Council, and it is binding upon me if it applies to the present case. The parties to that case were Shias, but the decision does not purport to rest upon any peculiarity of the Shia Law. According to it, the condition that the donee, Naki Ali Khan, shall pay the usufruct of part of the property to his nephew is valid.
6. The condition that Naki Ali Khan shall not alienate the property seems to be invalid. The respondent contends that she is not bound by the condition regarding the payment of the usufruct to the appellant because she is a purchaser for value and the property is not charged with the payment of the usufruct to the appellant. I cannot accept this contention. She mast have had notice of the condition, for it was contained in the deed under which Naki Ali Khan acquired title to the property. She holds the property on the same terms on which Naki Ali Khan held it.
7. Far the above reasons, I dismiss S.A. No. 1119 with costs, and I allow S.A. No. 1120 with costs here and in the lower Appellate Court and restore the decree of the Court of first instance.
8. The defendant filed an appeal under Section 10, Letters Patent.