Govinda Menon, J.
1. The Order of Reference to the Bench sets out the point for decision as depending on the construction of the gift deed, Exhibit A-2 which, if interpreted as creating a life estate with a vested remainder would raise for consideration the validity of such an estate under the Muslim Law; but in our opinion a true and proper construction of the deed leads to the conclusion that no life estate is thereby created in favour of the donor Muhammad Kutti. The document after reciting the properties dealt with thereunder proceeds as follows:
I have out of natural love and affection I have for Nos. I and 2 released or surrendered by assignment gift all my rights to the kanom reclamation, house and improvements thereon as per terms staled thereunder. But till my death I shall keep and enjoy the properties of the schedule without any munpattom or creating any mortgage or debt or alienating the same and it is settled that after my death Nos. 1 and 2 should keep the schedule mentioned properties and enjoy the same, with all rights of alienation and disposition paying the assessment and obtaining renewal directly from the jenmi.... The above mentioned kanom deed and all other documents relating thereto have been handed over herewith.
It is clear that the donor by the opening and operative portion divested himself by means of his gift, of whatever rights he had in the property. Words importing gift, assignment, surrender or release have been used. Such expressions are unqualified and should be taken to mean that no vestige of right remains with the donor and a transfer in praesenti has taken place. The second clause is in the nature of a proviso to the first stating that despite the fact that the donor has given up all his rights in the property he would keep possession and enjoy them without any kind of encumbrances and without even receiving from the tenants any security for rent. The recitals taken as a whole would seem to indicate an absolute divestment of all the rights of the donor in the property with liberty to keep possession and enjoy the income from them till his death. These clauses, cannot, therefore, be understood as creating a life estate with a vested remainder for if that had been the intention of the donor the rights and privileges reserved and inhering in him would be referred to in the first instance and then whatever rights the donee gets after the death of the donor would be described. Converse is the position here. An absolute grant is made in the first instance and the reservation to be in possession of the property and enjoy the income therefrom during the lifetime of the donor cannot be understood as derogating from the earlier grant but it is only an affirmation or reservation of a subordinate right to enure for a specified period.
2. As stated in the order of reference the question whether the Muslim under the Muhammadan Law can create a life estate with a vested remainder would have been decided by a Bench in Syed Mohamed v. Kairum Bivi (1954) 1 M.L.J. 673, had it not been for the fact that the case was decided on the interpretation of the settlement deed and therefore a decision on the general question became unnecessary. The learned Judges in that case quoted a passage from the decision in Nawazish All Khan v. Ali Raza Khan (1948) 2 M.L.J. 303 which runs as follows:
Muslim law does not recognise and insist upon a distinction between the corpus of the property itself and the usufruct in the property. Over the corpus of the property the law recognises only an absolute dominion heritable and unrestricted in point of time; and where the gift of the corpus imposes a condition inconsistent with such an absolute dominion the condition is rejected as repugnant but interests limited in point, of time can be created in the usfruct of the property and the dominion over the corpus takes effect subject to any such limited interests.
There can be no doubt that Exhibit A-2 conforms to all the conditions of a valid gift, as it contains a gift by the donor, acceptance of the same by and on behalf of the donee and delivery of possession of the subject of the gift by the donor to the donee. As the gift is made by the natural guardian of the first donee there is no necessity to deliver possession, for as stated in Mulla's Muhammadan Law (12th edition) at page 137, paragraph 129, no change of possession is necessary in the case of a gift by a grandfather to his minor grandson if the father is dead, for in that case the grandfather is the person who is to take delivery on behalf of his minor grandson and his guardian. So far as the second donee is concerned her father as natural guardian can function on her behalf. Though the document states that the 6th defendant's father is appointed guardian of the first minor donee, still such an appointment would be invalid and the donor continues to be the guardian. The result, therefore, is that Muhammad Kutti the natural guardian of the first donee need not deliver possession to himself and to that extent the document is valid.
3. Authoritative pronouncements of the Privy Council dealing with absolute gifts of the corpus with reservation to collect the accruing incomes during the lifetime of the donor have laid down that such documents are valid and enforceable. In paragraph 139 at page 143 of Mulla's Muhammadan Law (12th Edition) there is a discussion on the above subject:
Where property is transferred by way of gift and the donor does not reserve dominion over the corpus of the property nor any share of dominion over the corpus but stipulates simply for and obtains a right to the recurring income during his life, the gift and the stipulation are both valid. Such a stipulation is not void, as it does not provide for a return of any part of the corpus as in Section 164, Illustration (b) and (c). The stipulation may also be enforced as an agreement raising a trust and constituting a valid obligation to make a return of the proceeds during the time stipulated.
In the first of the cases cited, namely, the decision in Nawab Umjad Ally Khan v. Mohumdee Begum (1867) 11 M.I.A. 517. The right Honourable Sir Edward V. Williams delivering the judgment of the Judicial Committee observed as follows:
It remains to be considered whether a real transfer of property by a donor in his lifetime under the Muhammadan Law reserving not the dominion over the corpus of the property nor any share of dominion over the corpus but simply stipulating for and obtaining a right to the recurring produce during his lifetime, is an incomplete gift by the Muhammadan Law. The text of the Hedaya seems to include the very proposition and to negative it. The thing to be returned is not identical, but something different. See Hedaya, tit. 'Gifts' Volume III, Book XXX, page 294, where the objection being raised that a participation of property in the thing given invalidates a gift, the answer is, 'The donor is subjected to a participation in a thing which is not the subject of his grant, namely, the use (of the whole indivisible article), for his gift related to the substance of the article, not to the use of it'. Again, if the agreement for the reservation of the interest to the father for his life be treated as a repugnant condition, repugnant to the whole enjoyment by the donee, here the Muhammadan Law defeats not the grant but the condition. Hedaya, tit. 'Gifts' Volume III, Book XXX, page 307. But as this arrangement between the father and the son is founded on a valid consideration, the son's undertaking is valid and could be enforced against him in the Courts of India as an agreement raising a trust, and constituting a valid obligation to make a return of the proceeds during the time stipulated. The intention of the parties, therefore is not found to violate any provision of the Hedaya, and the transfer is complete. The Mahomedan Law authority whom Mr. Campbell consulted, supported it. His opinion is treated somewhat lightly as a nude opinion unsupported by authority; but it is to be observed, that unless some authority had been cited to show the transaction invalid, effect should have been given to the manifest intention of the parties.
4. In Muhammad Abdul Ghani v. Fakhr Jahan Begam (1922) 43 M.L.J. 453 : L.R. 49 IndAp 195 : I.L.R. 44 All. 301, the same Tribunal discussed the reasoning in Nawab Umjad Ally Khan v. Mohumdee Begum (1867) 11 M I.A. 517, which related to a Shia case in its application to a Sunni Muslim and held that no distinction can be made between the two. It is stated at page 314 that the reservation of the usufruct did not, by itself, make the gift of the property in question void under the Muhammadan Law, and that applies not only to Shias but also to Sunnis. At page 315, they observe as follows:
In considering what is the Muhammadan law on the subject of gifts inter vivos their Lordships have to bear in mind that when the old and admittedly authoritative texts of Muhammadan law were promulgated there were not in the contemplation of any one, any Transfer of Property Acts, any Registration Acts, any Revenue Courts to record transfer of the possession of land, or any zamindar estates, large or small, and that it could not have been intended to lay down for all time what should alone be the evidence that titles to lands had passed. The object of the Muhammadan law as to gifts apparently was to prevent disputes as to whether the donor and the donee intended at the time that the title to the property should pass from the donor to the donee, and that the handing over by the donor and the acceptance by the donee of the property should be good evidence that the property had been given by the donor and had been accepted by the donee as a gift.
We have, therefore, to administer without in any way circumventing or deviating from the original texts, the law as promulgated by the Islamic Law Givers to suit the present-day conditions; and in doing so, it has to be remembered that Courts are not at liberty to refuse to administer any portion of these tenets even though in certain respects they may not sound quite modern. The interpretation which we are putting on Exhibit A-2 is quite in consonance with the ancient law promulgated by the Islamic Law Givers as understood and interpreted by the Courts of the Highest authority.
5. The only other case cited by the appellant which needs consideration and which has been referred to in Syed Muhammad v. Kairum Bivi (1954) 1 M.L.J. 673, is the judgment of the Privy Council in Nawazish Ali Khan v. Ali Raza Khan (1948) 2 M.L.J. 303, in which the proposition already laid down in the two earlier Privy Council cases has been reiterated and reaffirmed to the effect that there is no difference between the several schools of Muslim law in their fundamental conception of property and ownership. A limited interest takes effect out of the usufruct under any of the schools. 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 upon construction, the gift is held to be one of a limited interest, the gift can take 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 limited interest. Their Lordships refer to the judgment of Wazir Hasan, J., in Amjad Khan v. Ashraf Khan and approve of it. It is unnecessary for us to further refer to the various portions of the judgment of the Judicial Committee for the question is whether the document under consideration can be brought within the rules of gifts laid down in that decision. We have no hesitation in holding that it is one such.
6. Learned Counsel for the respondents realising that he could not dispute the rules of law considered above and their applicability to the document in question contended that it is impossible to construe the document under consideration as one creating an absolute gift of corpus in the property with a reservation in the donor to enjoy the usufruct till his lifetime, and relying upon certain observations in Siddiq Ahmad v. Wilayat Ahmad : AIR1952All1 , pressed upon us the point of view that Exhibit A-2 should be construed as a creation of life estate with a vested remainder in the donees. He asked the Court to interpret the document as one in which the donor has retained in himself the ownership of the property for his lifetime and the donees would be entitled only to what remains on the donor's death. It was stressed that though stipulations such as inability to incur debts or to receive any security for rents are there still, the chief incident among the bundle of rights constituting ownership remains with the donor because during his lifetime, the donees even if they desire, cannot have possession of the property or take the income therefrom. Our attention was also invited to the decision in Jayanabibi v. Jayarabi (1950) 1 M.L.J. 209, where Raghava Rao, J. held that where a Muhammadan executes a settlement deed in respect of property in the hands of tenants and reserves to himself the right to receive rents during his lifetime and also undertakes to pay municipal taxes it cannot be said that in spite of these there is sufficient delivery of possession as required by Muhammadan law by the mere declaration to that effect in the document that the property has been delivered over to the donees. What is stated is, that there must be attornment by the tenants to the donee or reception of the rents and profits by the donees. The judgment in question is a short one and probably on the construction of the particular deed of gift it may be correct but to say that in all cases where properties are in the hands of the tenants it is impossible for a Musalman to make a gift of those properties unless there is an attornment of the tenants to the donees is stating the law in too wide terms which cannot find justification according to the principles of Muhammadan Law.
7. As we have stated already it is difficult to construe Exhibit A-2 as creating a life interest and therefore, the decision in Siddiq Ahmed v. Wilayat Ahmad : AIR1952All1 , cannot at all be applied. The observations of Raghava Rao, J. adverted to above that it is impossible to make a gift where the properties are in the hands of tenants unless there is any attornment of the tenants to the donee or any reception of the rents and profits by the donee cannot be justified and no binding authority is cited for such a broad proposition. Moreover the question of possession is one of fact and in the case decided by Raghava Rao, J. both the lower Courts had concurrently found that no possession passed. We cannot, therefore, hold it as an authority which can be followed.
8. It was next urged by the learned Counsel for the respondents that even if Exhibit A-2 is a valid document conferring title upon the donees, still the plaintiff has to be non-suited because he has not obtained any valid title to the property under the assignment deed, Exhibit A-3 which was by one donee for himself and as guardian of the other donee who was then a minor. There is, no doubt, that Unniankutti the first donee cannot function as guardian of the other donee, even though she was his wife at the time of the assignment, Exhibit A-3, and that being the case we are: asked to say that the plaintiff has obtained no title at all. How far the contesting respondents, namely, defendants 1 to 3 can raise that defence is somewhat open to question for within a few days after Exhibit A-3, under Exhibit A-4 the first defendant accepting the validity of Exhibit A-3 had surrendered items 1 to 3 in Exhibit A-3 to the plaintiff and later on it is alleged that she trespassed upon a portion of item No. 4. It may be mentioned that at the time of the gift deed and until the date of Exhibit A-4 the first defendant was holding items 1 to 3 of the gift deed as tenant and it was such tenancy rights that were surrendered under Exhibit A-4. Having, therefore, accepted the validity of the gift deed, Exhibit A-2 and the assignment, Exhibit A-3, it is not now open to the first defendant to say that either the one or the other of the documents is invalid. It is difficult to say that to the extent of the first donee's rights the assignment is, in any event, invalid, for the donees take the properties as tenants in common and when one of them becomes a major he is entitled to assign whatever rights he has acquired. But it is urged by the learned Counsel for the respondent relying upon the decision in Mohd. Amin v. Vakil Ahmad (1953) 1 M.L.J. 6, that a document cannot be held to be valid in respect of one part and declared invalid with regard to the other. The document in question in that case was a settlement deed and it was difficult to dissociate the rights and obligations of one party from those of the other in such a way as to separate the valid from the invalid portion and it was on that ground that the whole document was held invalid in respect of all the parties to the document. Under these conditions the respondents cannot derive much support from this decision. The other case on which reliance was placed by the learned Counsel for the respondents, namely, Ramachandrayya Naidu v. Abdul Kader Chisthi : AIR1948Mad37 , does not help his case, for what was stated in that case was that a de facto guardian of a minor has no authority whatever under the Mohammadan law to deal with the property of the minor and any purported transactions by him are void and invalid so far as the minor is concerned. The fact that the object of the transaction effected by the de facto guardian was to borrow money to pay off a debt which was binding on the minor or to stave off litigation in respect of an earlier debt will not render the same binding on the minor.
9. There is no difficulty in holding that Exhibit A-3 is invalid with regard to the minor donee's share, and we are of the opinion that the plaintiff has not obtained any right to the moiety belonging to the 6th defendant but he certainly has become the owner of the half share belonging to Unniankutti, and as such co-owner he has got the right to recover possession of the property from the first defendant who is after all a trespasser. It may be that after recovery of possession the plaintiff would be holding the same as co-owner with the 6th defendant but that would not detract from his right to eject the trespasser. Admittedly defendants 1 to 3 have neither title nor right to possession and cannot, therefore, resist the suit of the plaintiff. It is well settled that a co-tenant or co-owner has full right to be in possession of the property and to take steps to eject the trespasser from it. Applying that principle to the facts of the present case we feel that there is no valid defence to the claim of the plaintiff.
10. Lastly it was urged by the learned Counsel for the respondents, after inviting our attention to paragraph 10 of the judgment of the lower appellate Court, that the plaintiff's case in the lower Court was not that the donor had made a gift of the corpus in the property and had reserved to himself the right to enjoy the usufruct and to continue in possession but that his case was that possession was intended to pass under Exhibit A-2. On that account it was argued that the present case of the plaintiff which has found favour with us has been abandoned in the lower appellate Court and that a different case had been set up. We do not think that such an interpretation can be put upon the observations of the learned Subordinate Judge. The learned Judge has simply put forward what was argued and what should have been argued. In any event the plaintiff cannot, be precluded from putting forward a lesser case in second appeal because he had bargained for a much higher claim in the Court of the first appeal. It may also be mentioned, as stated by the learned Subordinate Judge in paragraph 16 of his judgment, that the question as to the invalidity of the gift deed was not specifically raised in the trial Court as was raised and argued in appeal by defendants 1 to 3. In these circumstances it seems to us that the plaintiff cannot be shut out from putting forward what appears to be a correct and proper construction of Exhibit A-2 which after all is a question of law. We do not feel justified in holding that there has been any abandonment of the case in the lower appellate Court. In view of our finding that Exhibit A-2 is a valid and enforceable gift the second appeal has to be allowed. The decree of the lower appellate Court is reversed and that of the District Munsif restored. As both the parties are to be blamed for not putting forward the proper case, we direct them to bear their costs throughout.