Balakrishna Ayyar, J.
1.One Imam Sahib had a son named Moideen Sahib, and three daughters named Kulsumbi, Jainabi and Asyabi, Moideen Sahib, has a son Imam Sahib and he is the first defendant in the suit. Jainabi had a son named Dada Miya who died in 1946. Dada Miya married the first plaintiff and by her he had Gve children who arc plaintiffs 2 to 4 and defendants 2 and 3. On 28-3-1906 Imam Sahib executed a settlement deed Ex. A. 1 wherein, inter alia he made the following provisions. He gave all his properties to his son Moideen Sahib and directed that he and his heirs should pay five mudis of rice to Kulsumbi and another five mudis to Jainabi and after their lifetime to their male children.
Asyabi had a daughter and so far as she was concerned, the settlor directed that she was to be given eight mudis of rice and Rs. 4 per annum but after her death no one 'shall have the right to claim anything allotted to her. After her death, you and your representatives shall utilise the said rice and cash.'
Then followed the further direction that out of the income from item 8, certain expenses were to be incurred for lighting lamps etc, in a mosque which the settlor specified. Towards the end of the document the settlor attempted to make his intention in respect of Kulsumbi and Jainabi plainer. He said:
'As regards the rice which has been settled to be paid to the first and second daughters of mine, the said individuals shall realise the same up to their death; and after their lifetime, the male descendants of the said individuals should realise the same herediatarily; but they should not alienate this right in any manner by way of mortgage, sale etc.'
2. The action out of which this second appeal arises was brought by the widow and children of Dada Miya claiming payment of the five mudis of rice which under the terms of the settlement deed, they stated, the first defendant should have given to them. The third defendant is a woman and her claim was negatived on the ground that only the male descendants of Kulsumbi and Jainabi could claim payment by virtue of the provisions of Ex. A. 1, The claim made by the sons of Dada Miya was allowed by the learned District Munsif and the appeal which the first defendant took to the learned Subordinate Judge, South Kanara was dismissed. He has therefore conic to this court.
3. The arguments before me covered a considerable extent of ground but it is possible to dispose of the appeal on a very short point. In so far as the dispositions made under Ex. A. 1 by Imam Sahib can be regarded as an attempt to limit the succession to male heirs and thus to create a line of succession unknown to Muhammadan law, it is bad. In so far as the direction that five mudis of rice should be paid to the male descendants of Kulsumbi and Jainabi can be regarded as a gift it would be bad because it would be a gift to persons not in existence on the date when the document was executed. It is not controverted that on the date of Ex.. A.1 Dada Miya had no children born to him.
4. I shall now refer to some of the decisions cited (luring the arguments. -- 'Chekkonekutti v. Ahmed, 10 Mad 196 (A), was a case in which one Ahmed Haji executed a document Ex. A in favour of his wife which, inter alia provided:
'I nave agreed that the said properties should be perpetually enjoyed by you, as long as you are alive, and after your death by Pathuma who is bom to me in you, and children born to her.'
On the date of the deed Pathuma bad no children and she died before her mother. She however left two children surviving her. These two children claimed the properties under Ex. A on the death of Ahmed Haji's wife. Their claim was negatived. The learned Judges held:
'The principles of Muhammadan law which prohibit indefinite gifts and gifts in future appear to us equally to exclude the validity of such gifts to take effect at an indefinite future time.'
---. 'Amtul Nissa v. Mir Nuruddin', 22 Bom 489 (B), was a case in which one Nawab Mir Kamaluddin made a gift of Rs. 4000 per annum to his wife in perpetuity. This amount was to be paid out of the interest in six villages and out of certain other properties which he had inherited from his father. The court ruled:
'On the ground, however, that this is a. gift in effect of a portion of the future revenues of the villages to the extent of Rs. 4000 per annum, we think that it is invalid according to Muhammadan law. . The law is express upon that subject. A gift cannot be made of anything to be produced in futuro although the means of its production may be in the possession of the donor.'
It has to be remarked that in the case before sne 'Moideen Sahib and his descendants are required to pay the rice out of the produce of the lauds that had been gifted to them.
5. A different view has been taken in -- 'Mt. Sartai Fatima v. Muhammad Jawad', (C). At page 7 it is stated:
'There is nothing contrary to the' tenns of the Muhammadan law in a gift by one person to another of a guzara for the lifetime of the latter with a continuance in favour of the male heirs of the donee, and such a gift could be made without offending any principle of Muhammadan law.' If one may say so with respect on the facts of that case the decision was perfectly right. The plaintiff there based her claim on an award and it was that very award which she sought to question. The plaintiff's objection was that the award itself was bad in law because 'the terms of the award and decree altered the line of succession as laid down by the Muhammadan law'. The learned Judges observed:
'Now even if it be held that the award of the arbitrator in this case has laid down any rule altering the course of the legal devolution of an estate, it does not appear to us open to the plaintiff the challenge it. She has based her whole claim on the award and apart from that award she would not be entitled to anything by way of guzara from Syed Muhammad Jawad. She cannot object to the conditions which were contained in the award on which she based her title.'
That being so, the observation first quoted and which seems to lend support to the contention of the respondents was really obiter. I may add that there is no discussion of the matter or examination of the authorities. It is very clearly stated in Section 141 of the 13th Edn. of the Principles of Muhammadan Law by Mulla that 'a gift to a person not yet in existence is void'. As I read it, Ex. A.1 attempts to make a gift of 5 mlidis of rice to the male descendants of Kulsumbi and Jainabi from generation to generation. In respect of persons who were not in existence on the date of Ex. A. 1, the attempted gift is bad and must fail.
6. In this view the appeal is allowed with costs throughout. No leave.