1. This is an appeal under the Letters Patent against the judgment of Rajagopalan J. with his leave dismissing 'S. A. N. 1958 of 3946'. It arises out of a suit for partition of property which originally belonged to one Hussain Meera, a Sunni Mahomedan. On 9-11-1914 he executed a deed of settlement (Ex. P. 1) in favour of his second wile Nainammal Bibi. The occasion was his proposed marriage to a third wife. The decision of this appeal depends on a construction of the terms of this Settlement Deed. The material portions 0 this deed are as follows:
'I have settled upon you for your maintenance the undermentioned nanja land worth Rs. 2000. Therefore this is a settlement deed executed (by me) consenting that you should enjoy for your lifetime the income alone from the said nanja land, that you should not make any gift, sale or hypothecation etc. of the said land, that if you should hereafter have issue by me, the said issue should enjoy the said land hereditarily, and that if you should not have such issue the said property after your lifetime go to me and to my heirs' (Santhathi).
2. Hussain Meera died in 1925. He had no issue by Nainammal, his second wife. But by his third wife, he had a daughter Amir Bibi who survived him. Nainammal died on 26-1-1912. On that date it is common ground that the only surviving heirs of Hussain Meera were his mother and his sister, the second defendant in the suit and the appellant before us. She obtained an assignment of her mother's interest and she claims the property in her right and in the right of her mother as the only heirs of Hussain Meera in 1942. Nainammal before her death had executed on 18-3-1940 a deed of gift of the suit property in favour of the first defendant. The validity of this gift was challenged in a prior suit which came up to this court in second appeal and it was finally decided therein that that deed was invalid as Nainammal took only a life estate in the property.
3. On the death of Nainammal, one of the heirs of Amir Bibi (who had died in 1931) instituted the present suit for partition. His claim originally was on the footing that Amir Bibi got the entire estate on the death of Nainammal as the only one of the 'Santhathi' of Hussain Meera alive on the death of Nainammal. This position however was subsequently abandoned and the plaintiff was content to claim on the footing that Amir Bibi was one of the heirs of Hussain Meera when he died in 1925. The main contesting defendant was the second, the appellant before us, who, as already mentioned, claims that the succession opened really in 1942 when Nainammal died and on that date, the only two surviving heirs of Hussain Meera were his mother and herself.
4. Rajagopalan J, held on a construction of Ex. P. 1 that Hussain Meera by that document conferred on Nainammal only a life interest in the income of the suit property. It followed from this finding that the right to the corpus continued to remain with. Hussain Meera and on his death his heirs would be entitled to the property, though, so far as the enjoyment of the income therefrom was concerned, it would be postponed till the death of Nainammal. He came to this conclusion mainly on the latest and most authoritative pronouncement of the Judicial Committee in - 'Nawazish All Khan v. Ali Raza, Khan', AIR 194 PC 134 (A). It is unnecessary to refer at length to the effect of this decision as the entire law on this subject has been set out fully in the 13th Edn. of Mullah's Muhammadan Law at pages 46 to 50. It suffices to give the following extract from the judgment of their Lordships :
'Their Lordships feel no doubt that in dealing with a gift under Muslim law the first duty of the court is to construe the gift. If it is a gift of the corpus, then any condition which derogates from absolute dominion over the subject of the gift will be rejected as repugnant; but if on construction the gift is held to be one of a limited interest, the gift can take effect but out of the usufruct, leaving the ownership of the corpus unaffected except to the extent to which enjoyment is postponed for the duration of the limited interest.' We agree with Rajagopalan J. that there was no absolute gift of the corpus in favour of Nainammal. The language makes it abundantly clear that the settlor did not intend to confer absolute dominion over the subject of the gift to her. The gift was certainly of a limited duration. It follows then that such a gift can take effect only out of the usufruct and this is exactly what the settlor himself says. He confined the enjoyment of Nainammal to the income alone from the land. The result is that the ownership of the corpus is left unaffected except to the extent to which its enjoyment is postponed for the duration of the limited interest in favour of Nainammal. So, when Hussain Meera, in whom the ownership continued, died the succession opened and his heirs succeeded to the property. This is what Rajagopalan J. has held, and we entirely agree with him.
5. The Letters Patent Appeal is dismissed with costs.