Sathar Sayeed, J.
1. The unsuccessful appellants in A.S. No. 755 of 1969 have preferred the above Letters Patent Appeal. One Sheik Ismail filed a suit for partition and separate possession of his share in B, C and D schedule properties. The short case of the plaintiff was that he is the eldest son of Shamsuddin and the first defendant in O.S. No. 38 of 1960 is his sister. Defendants 2 and 3 are the sons of first defendant. Shamsuddin had another son by name Abdul Khader who died in the year 1964 and the 4th defendant is the wife of the said Abdul Khader. The plaintiff's mother Hussain Beevi wife of Shamsuddin dies in the year 1962. According to the plaintiff B schedule properties belong to his mother and he is entitled to a 3/10 share in those properties. His further case was that C and D schedule properties are family properties and he is entitled to a share in the said properties. His further case was that Shamsuddin has executed two documents, under Exs. B-7 and B-10 in the year 1966 without the consent of the other shares and the said two settlement deeds are not valid and binding on him.
2. Therefore, he claims a share in the properties. Defendants 1 to 3 contended that the plaintiff is not entitled to any share in the properties except in item 3 of B schedule. They also disputed the share of the plaintiff. Inter alia, these defendants contended that by a settlement deed under Ex. B-7, dated 10-1-1966, Shamsuddin has settled the first item of C schedule properties to defendants 1 to 3, reserving to himself only the income therefrom for his life. They also contended that item 2 in C schedule has been settled by Shamsuddin on the second defendant by a deed dated 10-6-1966 and possession was given to the second defendant. Therefore they contended that the plaintiff cannot claim any share in the C schedule property. We are not concerned with the remaining facts of the case. The trial Court on going through the documents and also the oral evidence, held that the plaintiff is entitled to a share in item 3 of B schedule and item 1 in C schedule. He has also granted a decree for a sum of Rs. 307/- towards 2/3rd share of the plaintiff with respect to the movables in D schedule, and directed the plaintiff to pay a sum of Rs. 3,910/-, to defendants 1 to 3 towards the debts payable by his father and left by him at the time of his death. The learned trial Judge has also directed the plaintiff to pay a sum of Rs. 667/- to defendants 1 to 3 payable by the plaintiff towards his share with respect to the funeral expense of his father Shamsuddin. It is against this Judgment and decree in O.S. No. 38 of 1968, defendants 1 to 3 preferred A.S. No. 755 of 1969 to this Court. The main contention and attack of defendants 1 to 3 in A.S. No. 755 of 1969 to the trial Court decree was that the trial Court erred in granting a decree with respect to item 1 of C schedule property in favour of the plaintiff. Let us see what is C schedule property an under what instrument the plaintiff claims that he is entitled to a share in that property. Shamsuddin who is the father of the first defendant and grandfather of defendants 2 and 3 has executed a settlement deed Ex. B-7 dated 10-1-1966 in favour of the first defendant. Item 1 of this settlement deed is a rice mill, item 2 is a trust property wherein certain directions are given for the performance of certain fathias from and out of the income of the said item. Item 3 is a house property in which Shamsuddin claims a share in item 1 of the C schedule property. As far as item 3 of C schedule is concerned, there is no dispute and nothing has been argued before N. S. Ramaswami, J. who heard the appeal A.S. No. 755 of 1969. The main contention of defendants 1 to 3 who are the appellant before us and who were the appellants in A.S. No. 755 of 1969 is that the plaintiff is not entitled to a share in item 1 of C schedule because, under the settlement deed Ex. B-7, the disposition was in favour of Shamsuddin so long as he was alive and subsequent life estate in favour of the fist defendant and ultimately the property goes to defendants 2 and 3. According to the appellants, such a settlement is valid and binding on the plaintiff and the decree granted by the trial Court to the plaintiff with respect to this item is illegal and invalid.
3. When the appeal was heard by N. S. Ramaswami, J. it was erroneously argued on behalf of defendants 1 to 3 that Ex. B-7 is a gift deed. The donor, Shamsuddin, has given and gifted item 3, the house property, under the same deed and therefore it has to be presumed that item 1 of the C schedule as also been gifted to the first defendant. The learned counsel presuming that Ex. B-7 is a gift deed, argued that a valid gift has been granted to defendants 1 to 3 and therefore the plaintiff is not entitled to a share in item 1 of C schedule property. N. S. Ramaswami, J. on the basis of the arguments of the appellants' counsel held that the document Ex. B-7 is a gift in future and not a gift in praesenti and therefore the said document with respect to item 1 is invalid. According to the learned Judge, the donor has clearly stated in Ex. B-7, that as far as item 1 of the C schedule is concerned, after the donor's lifetime, his daughter, the first defendant, should get the property and that too not corpus but only the usufruct and that corpus should be taken ultimately by the grandchildren who are defendants 2 and 3. The learned Judge held that the trial Court was right in its conclusion that the gift is only in future and as such the donor did not intend to transfer any interest in the property in praesenti. With these observations, the learned Judge (N. S. Ramaswami, J.) dismissed the appeal. It is against the dismissal of A.S. No. 755 of 1969, the above Letters Patent Appeal has been preferred.
4. It is contended and argued before us by the counsel appearing for the appellants that the gift with respect it item 1 of the C schedule property is a valid one and the plaintiff cannot clam a share in that property. We have gone through the document Ex. B-7. In that document, the donor has stated that his eldest son i.e., the plaintiff was not amicable with him and that in order to avoid disputes in future with reference to the settlor's property after settlor's death, the first defendant on account of the services rendered by her to the settlor, and also an account of her love and affection, will get certain properties. The document further mentions that the settlor would enjoy items 1 and 3 of the settlement deed for his life and after his life, the settlee (first defendant) would take item 1 (rice mill) and utilise for herself the income therefrom after meeting repair expenses, and that after the first defendant's (settlee's) life, defendants 2 and 3 would take the property absolutely.
5. On a fair reading of the settlement deed, it is very clear that what Shamsuddin intended to do with respect to item 1 was, that he wanted to take the income from this property for his life and he did not retain any portion of the corpus or any dominion, that is to say, he should enjoy the usufruct of this item of property, so long as he is alive and after his death, the property will go to the first defendant and after her death, it should go to defendants 2 and 3. Therefore, a reading of the document Ex. B-7 with respect to item 1 evidences that a life estate has been created in favour of the first defendant and after the death of the first defendant the property will go to defendants 2 and 3.
6. The learned counsel before us has argued that it is a gift pure and simple and the same argument was also advanced before N. S. Ramaswami, J. when he heard the appeal in the case. If the document is construed to be a gift with respect to item 1, then N. S. Ramaswami, J. was perfectly justified in holding that it is a gift in future and therefore it is not valid. On a fair reading of the document Ex. B-7, it is clear, as far as item I is concerned, it is not a gift but it is only a life estate created by the donor in favour of the first defendant, and after her death the property would go to defendants 2 and 3. The trial Court has, by misapprehension, thought that it is a gift and therefore, held that possession was not given to the corpus and therefore it is not valid. As stated above, after going through the document it is clear that as far as item 1 under the document is concerned, life estate is created and not a gift as alleged and contended by the first defendant. In this document, with respect to item 1, there is no descriptive clause resulting in divestiture of the property. The settlement deed, as far as item 1 in C schedule is concerned, explicitly mentions that Shamsuddin will enjoy the property so long as he is alive and after his death, the rice mill will be enjoyed by the first defendant and after her death it will go to defendants 1 to 3.
7. It is well established that in order to constitute a valid gift under the Mohammedan Law, the three necessary elements which constitute such a gift are, a declaration of gift by the giver, the acceptance of the gift by the donee which acceptance may be expressed or may be inferred by necessary implication and lastly delivery of possession of the subject matter of the gift by the donor to the donee. But in the course of time certain exceptions have been engrafted in the matter of the upholding of a gift notwithstanding immediate delivery of possession of the subject-matter of the gift. One such exception is a case where the donor without reserving dominion over the corpus of the property or any share therein, stipulates only for a right to enjoy the income from the property during his lifetime or makes the gift subject to a condition that the donee shall pay the whole of the income from the property or the part thereof to a person of his choice during the lifetime of such a person. Though this appears to be an apparent exception to the generality of the rule embodying the three conditions which would make a valid gift, yet it is not really an exception. Reservation of a right to enjoy the income, though ordinarily called a life estate does not militate against the validity of the gift because the corpus of it is absolutely given over to a named individual and the condition whereby the income should be enjoyed either by the donor or his nominee does not detract from or violate the essence of a valid gift. If in a given illustration the subject-matter of the gift is sliced away by the donor, or the condition or restriction contemporaneously imposed by the donor, is so obvious that one would understand the gift as taking away a portion of the corpus of the gift, then Mohammedan Law does not accept it as a valid gift. The reason is obvious. By imposing such a restriction as above, the entirety of the property which is the subject-mater of the gift is not given away but only a portion thereto. This is not possible to make it a valid gift. If, however, the restriction or the condition is such whereby a right to enjoy the income from the gifted property is contemplated, and whether such enjoyment is by the donor or by his nominee, it would not tantamount to the taking away of a portion of the corpus of the property, but it is only a temporary right to enjoy the usufruct therefrom.
8. Keeping this position of law in mind, we have to see whether Ex. B-7 with respect to item 1 is a life estate or a gift simpliciter. The counsel for the appellants both before N. S. Ramaswami, J. and before us argued on a wrong misapprehension, that it is a gift, and the Courts below, construing item 1 of C schedule as a gift, have erroneously held that it is not binding on the plaintiff. The trial Court has taken the view that it is a gift and on the basis of that, it held that possession was not given to the donee and therefore, it violates one of the essential conditions of gift. As stated above, on going through the document Ex. B-7, it is found that only a life estate is created in favour of the first defendant and not a gift. The trial Court has not applied its mind to this point and has erroneously considered this item of property as falling within the purview of S. 149 of the Mullah's Mohammedan Law. With great respect, we disagree with the finding of N. S. Ramaswami, J. who held that it is a gift in future. In view of the above observations, we allow the Letters Patent Appeal and set aside the judgment in A.S. No. 755 of 1969 and also the decree in O.S. No. 38 of 1968 of the Sub-Court, Nagapattinam, as far as item 1 of C schedule property is concerned and confirm the decree of the trial Court in other respects. We direct the trial Court to construe, in the line indicated above. We, therefore, remand this case to the trial Court for fresh disposal as far as item 1 of C schedule is concerned. Hence we dismiss the appeal with costs.
9. Appeal dismissed.