N. S. Ramaswamy, J.
1. In this originating summons the question is about the interpretation of a particular clause in a settlement deed. The first defendant .who is the brother of the Plaintiff executed the settlement deed dated 1st June, 1963 in favour of the plaintiff. Three items of properties are dealt with in the settlement deed. In items 1 and 2 the plaintiff had an 1/3rd share in her own right. The first defendant had the remaining 2/3rd share. The whole of item 3 belonged to the first defendant. Under the settlement deed, the first defendant gifted his 2/3rd share in items 1 and 2 and the whole of item 3 to the plaintiff and her children. The relevant clause which requires interpretation is in the following terms:
That in consideration of the premises the settlor hereby settles and transfers to the settlee for her life without any right of alienation and thereafter on her children both male and female absolutely the properties mentioned in the schedule hereto and that the settlor has put the settlee in possession of the said properties and the settlee shall possess and enjoy the said properties free from the claims of the settlor or any person or persons claiming under him.
Defendants 2 to 9 are the children of the Plaintiff among whom the ast two were born after the execution of the above settlement deed.
2. According to the plaintiff, the clause in the settlement deed should be interpreted as an absolute gift of the properties to her but with a condition not to alienate the same, and that the condition is invalid.
3. The contention of Mr. Amjad Nainar, learned Counsel for the plaintiff is that the gift of life estate is unknown to Mahomedan Jaw, that if under a document of gift life-estate is sought to be created it must be construed as a gift and a condition, which condition is invalid and that the gift which is mentioned as of a life-estate operates as on absolute gift. This contention is not acceptable.
4. Certain observations of the Privy Council in three cases resulted in sorre Courts holding that in every case of gift of life-estate it must be deemed that there was a gift and a condition and that the condition being invalid the gift operates as an absolute gift. In Mussamut Humeeda and Ors. v. Mussamut Budlam and the Government (1872) 17 W.R. 525 the Privy Council observed that the creation of a life-estate did not seem to be consistent with Mahomedan usage. However, it may be noted that even in this decision the Privy Council did not hold that under Mahomedan law life-estate can never be created. All that their Lordships of the Privy Council stated was that creation of life-estate did not seem to be consistent with Mahomedan usage and therefore there ought to be very clear proof if the Court were to hold that such life-estate had been created. In Abdul Gafur and Ors. v. Nezamuddin and Ors. (1892) 19 I.A. 170 : I.L.R. 17 Bom.1. (P.C.) also it was observed that 'life-estate', which is a kind of estate does not appear to be known o Mahomedan law. In Abdul Wahid Khan v. Mussamat Nuran Bibi and Ors. (1885) 12 I.A. 91 : I.L.R. 11 Cal.597 (P.C.) it was observed by the Privy Council that Mohamedan law does not recognise vested estates in remainder.
5. It is on the basis of the above observations of the Privy Council, it has been contended that if what is purported to be gifted is a life estate it must be deemed to be a gift with a condition and that the condition being invalid, the gift must be taken to be an absolute one. But that is not correct. In Amjad Khan v. Ashraf Khan (1929) 56 I.A. 213 : 116 Ind.Cas. 405 : 30 L.W. 91 : A.I.R. 1929 P.C.149, the Privy Council had to deal with a case where the donor gave his wife an 1/3rd share of his property with power of alienation and gave the rest 2/3rd share for her lifetime. The gift deed further stated that after the death of the donee the entire property shall revert to the donor's collaterals. (The donee had not exercised the power of alienation in respect of he 1/3rd share). After the donee's death her heirs claimed the property as against the donor's collaterals. The Privy Council negatived the claim of the donee's heirs in respect of the entire property, including the 1/3rd share over which the donee had been given power to alienate. Even in respect of the 1/3rd share it was held that only a life-estate had been created. As the gift deed stated that after the death of the donee the property (including the 1/3rd share) should revert to the donor's collaterals, the gift was obviously of a life-estate though the donee had been given a power of alienation in respect of an 1/3rd share which she did not exercise. If the contention that whenever there is a gift of life-estate it must be deerred as a gift with a condition (as gift of life-estate is unknown to Ma homed an law) and that the condition being invalid the gift must be held to be an absolute one is correct, then in the above cases, the Privy Council ought to have upheld the claim of the donee's heirs to the entire property. It had been contended in that case that a life-estate could not be created by gift. Their Lordships of the Privy Council did not express any opinion regarding the same, but stated that if that contention is right it would in no way help the donee's heirs, because it would only mean that the donee tock nothing by the gift.
6. In Nawazish Alt Khan v. Ali Raza Khan the Privy Council has held that when a life estate is created under a. Mahomedan hiba it would take effect out of the usufruct. Even though the case was a Shia case. Their Lordships of the Privy Council stated that the above principle would be applicable to all cases of Mahomedan law. It has been pointed out in that case that if on a true construction of the gift deed, the gift is of the corpus, then any condition which derogates from absolute dominion over the subject of the gift will be rejected as repugnent, but 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 limitad interest.
7. A Division Bench of the Calcutta High Court has reviewed the case law on this point in Anjuman Ara Begum v. Nawab Asif Kader Sir Syed Wasif Ali Meerza I.L.R. (1955) Cal. 109 and pointed out that nowhere it was held that life-grants are necessarily invalid in Mahomedan law or that such grants are wholly unknown in that system of jurisprudence and they automatically enlarge into absolute grants. They observe at page 123:
Limited interests short of complete ownership may also he created but not in the form of a gift of the 'corpus' subject to a condition affecting the same--'the thing' or 'the substance'.... Any such interest, whether limited 'in point of quality or in point of duration' is, in Mahomedan law different from the 'corpus' and takes, effect out of the 'usufruct'.
Mr. Amjad Nainar, referred to pages 46 and 47 of Mulla's Principles of Mahomedan Law, Sixteenth Edition. But a careful perusal of the same would show that the author is not supporting the contention put forward by the learned Counsel. After referring to the other decisions, the case reported in Amjad Man v. Ashraf Khan and Ors.1 is dealt with. Then in the last paragraph at page 47, the author referring to the above case of the Privy Council says that the said decision cannot be said to be proceeding upon the ground that the case was not one of hiba pure and simple. It is further pointed out that the said decision is a direct authority against regarding a life interest as .enlarged by the doctrine which invalidates a condition restrictive of a gift and that the decision contra in a Bombay case should be deemed to have been overruled by the Privy Council.
8. In the present case there can be no doubt that the donor intended to give only a life-interest to the plaintiff. In the preamble of the gift deed the word absolute' is used but it must be remembered that the deed is not in favour of the plaintiff only. It is in favour of her children also, on whom absolute rights are conferred. The fact that the preamble does not mention the children would not make any difference. The operative clause extracted above is quite clear to show that only life-interest is given to the plaintiff, while the children are given absolute right. 1 wonder how the document can be construed as conferring an absolute interest on the plaintiff with a condition against alienation. If under Mahomedan law life-estate cannot be created by gift has contended on behalf of the plaintiff) then in this case it must be held that the plaintiff got nothing under the document, as pointed by the Privy Council in Amjad Khan v. Ashraf Khan and Ors. (1929) 56 I.A. 213 : 116 Ind.Cas. 405 : 30 L.W. 91 : A.I.R. 1929 P.C. 149 referred above. If the document in terms created only a life estate, there is no warrant to construe the same as one creating an absolute estate with a condition against alienation, on the theory that life estates by way of gift are unknown to Mahomedan law. If such theory holds good, under a document creating a life-estate the donee would get nothing and not an absolute estate.
9. It should be taken to be settled law that if in a Mahoraedan gift, life estate is created, it would take effect out of the usufruct. Therefore in the present case the plaintiff having been granted only a life-estate it takes effect out of the usufruct. It cannot be construed as an absolute gift of the corpus with an invalid condition attached to it. The question is answered against the plaintiff. The suit therefore fails and is dismissed.
10. I place on record my appreciation of the assistance rendered by Mr. M.A. Sathar Sayeed as amicus curiae in this case.