T.K. Joseph, J.
1. This is 8 plaintiff's appeal, from the decree dismissing a suit for partition and recovery of her share in the properties of her father Kutti-kannu Mytheen Kannu who died on 7-10-1124. The plaintiff and defendants 2 to 6 are the children of Mytheen Kannu and his widow the 1st defendant. They had four daughters and two sons.defendants 2 and 3. The plaintiff's case was that she was entitled to a 7/64th snare in the properties.
Defendants 2 and 3 resisted the suit alleging that the properties in schedule A were gifted to them by their father under Ext. A dated 2-7-1123 and that the plaintiff and other heirs of their father were not entitled to claim any share in the same. Items Nos. 10 and 11 in schedule A had been mortgaged with possession by Mytheen Kannu to the plaintiff at the time of her marriage and these items were in the plaintiff's possession at the time of the gift. According to defendants 2 and 3 all the other immoveable properties came into their possession under Ext. A.
The defendants denied having come into possession of the moveables in Schedule B, Defendants I, 4 and 6 supported the plaintiff. The plaintiff filed a replication stating that defendants 2 and 3 came into possession of the properties only after her father's death. This suit was tried along with O. S. No. 120 of 1951, a suit by defendants 2 and 3 for redemption of the mortgage in favour of the plaintiff.
The trial court found that the gift had come into effect and that the plaintiff in the suit for partition was not entitled to any relief. The suit was accordingly dismissed. O. S. No. 120 of 1951 was decreed allowing redemption and there is no appeal from that decree.
2. The question for decision in this appeal is whether defendants 2 and 3 obtained valid title to the properties under the gift deed. Though several grounds were urged in the plaint in support of the case that the gift was invalid and inoperative, the only point pressed in appeal was that the donees did not get possession of the properties covered by the deed of gift and that it was therefore inoperative.
It was contended that the terms of the gift deed made it clear that possession was to remain with the donor till his death. The relevant clauses in Ext. A may be translated as follows:
'The properties described in the schedule are given to you as gift. You are to take possession of those properties, to pay tax on the same and to obtain Patta for all the properties other than survey Nos. 1708, 1727 and 1699 which are mortgage rights. You are to surrender the mortgaged properties on receipt of the mortgage money or to take renewals of the same and to hold the properties with absolute rights after my life time ..................I will be taking the yield of theproperties during my life time and you are not to do any act which might obstruct the same and if you execute any deed in respect of the properties during my life time the same should be-with my concurrence .............. 16 cents inS. No. 2364 have been given to my daughter Kadija Beevi on Stridhanom Otti. I will pay the money due to her and obtain a release.'
It was argued that the clause that the donees were to enjoy the properties with absolute right after the donor's death indicated that the gift was to come into effect only after the donor's death. We are unable to accept this interpretation. If such had been the intention of the donor, this clause should have come at the commencement of the operative portion of the deed.
On the other hand what is seen from the deed is that the donees were to take possession of the properties, to obtain pattas in their name and to pay tax to the Government from the date of the gift deed. The clause that donees were tohold the properties with absolute right after the donor's death was inserted at the end of the operative portion because the usufruct of the properties was to go to the donor during his life time. It may be mentioned that there was no restriction on the donees making improvements on the properties.
The deed in our opinion supports the defence case that it was to come into operation immediately. The plaintiff's case 96 stated in paragraph 11 of the plaint was that Ext. A was executed at a time when Mytheen Kannu was not in his proper senses due to old age. It is therefore unlikely that he would have continued in possession of the properties. All the heirs of Mytheen Kannu except the plaintiff have recognised the absolute rights of the donees to the properties covered by the gift deed.
It was urged on behalf of the appellant that the gift deed was one causing interference to the normal course of devolution of the properties of the deceased and that it was therefore invalid. Such a case has not been specifically pleaded and there is nothing in the evidence which supports the allegation that Ext. A was a device to deprive the lawful heirs of their shares in the properties.
It is true that according to principles of Mohammedan law a gift of immoveable properties of which the donor is in actual possession is not complete unless the donee is given possession. The mere fact that the donor reserves the right to take the usufruct given in his life time does not mean that possession is not given to the donees. Such a reservation is quite consistent with delivery of possession of the properties to the donees.
Learned counsel for the appellant relied on the decision in Maitheen Beevi Umma v. Varkey, 1956 Ker LT 444: (AIR 1956 Trav-Co. 268) (A). This decision if at all supports the defence ease. It was held in that case that a condition In a deed of gift that the whole of the usufruct would be taken by the donor during his life time would not make the gift invalid if possession of the subject-matter of the gift was given to the donees. The evidence and circumstances support the defence case that possession was given to them immediately after the execution of the deed.
Soon after the gift was made, defendants 2 and 3 applied to the Revenue authorities and got patta for the properties. Thereafter they were paying tax in their names. These steps were taken during the life time of their father which shows that the gift was intended to come into effect Immediately. The 2nd defendant deposed that himself and the 3rd defendant got possession of the properties even during the life time of their father and in the circumstances of the case his testimony has to be believed.
We therefore come to the conclution that the donees obtained possession of the properties during the life time of donor and that the gift is a perfectly valid transaction. This is the finding of the learned trial Judge and we uphold the same. It necessarily follows that the plaintiff is not entitled to any share in the properties covered by the gift deed. It may also be stated that the plaintiff did not attempt to give any evidence that the moveables described in Sch. B existed or that the same were in the defendants' possession. The suit was dismissed in respect of the moveables also and no ground was taken in appeal regarding the same.
3. In the result, the decree of the courtbelow is confirmed and the appeal is dismissedwith costs.