1. The questions before us arise out of a hebanama by a Mubammadan lady named Katu Bewa. It baa been found by the learned Subordinate Judge that the plaintiff has failed to prove that be is the sole heir of Katu Bewa. Having regard to that, it has been rightly held that the plaintiff is entitled to 8 annas of the property mentioned in Schedule ka. The other 8 annas, therefore, is to go to the defendants.
2. With regard to the deed of gift, he agrees with the learned Munsif that it was duly executed and that the donor intended to give the plaintiff the quantity of land mentioned in the deed. But he held that as the deed of gift did not show which portion she intended to give away, the matter came within the mischief of the rule of Musha. It is, however, to be noticed that the deed purports to give half of the quantity of land mentioned therein. In one plot reference is made to 5 cottas only. But it appears from the evidence that that 5 cottas is half of the 10 cottas which was owned by the lady, the plot being one bigha. It has also been found that the plaintiff was brought into the house of Katu Bewa, some years before her death, that he used to cultivate all her lands during her lifetime. The heba was executed in Kartik 1321. So during these several years the plaintiff lived with her in the same house and cultivated all her lands. The lady died in Pous 1321, shortly after the execution and the registration of the hebanama. The learned Subordinate Judge finds that the same state of things continued up to the death of the lady and he, therefore, thinks that as there is no evidence of change in the character of possession, the rule of Musha affects the gift and that the plaintiff is not entitled to the quantity of land given to him by the lady. 'We find however that the plaintiff immediately after the death of this lady paid rent of the land to the landlord. It was a payment by him. No doubt the lady paid rent of the earlier period, We think it is absolutely impossible for any man in the position of the plaintiff to prove that he was cultivating half of the land in his personal capacity after the deed, as his was the hand which titled these lands before the death of the lady and he continued to till the lands after the execution of the deed. How was be lb show that he was tilling the land for himself and not for both, or that he was tilling one portion for himself and the other portion for the lady? The period between the execution of the document and the death of the lady being a very short one, it was very difficult for the plaintiff to give any further evidence than what he has given. We are unable to accept the inference drawn from that by the learned Subordinate Judge. There was clearly an intention to give. The man was living with her for a considerable number of years. He was looking after her and she died shortly after the execution of the documents, and we think it is fair to infer from these circumstances that when there was an intention to give, full effect was given to that intention by the lady, and the fact that he tilled the land ought to be taken in his favour and not against him. A liberal interpretation has to be given, having regard to the decisions of the Privy Council, of gifts of this character, and we think that it would, be doing great injustice to the plaintiff if we held, there being dear evidence of acts of possession being exercised by the plaintiff on his own behalf, that the deed was ineffectual. We think the evidence of possession ought to be construed in favour of the plaintiff and effect given to the deed. Having regard to the fact that the document purported to give one half of certain plots, we do not think that there is likelihood of any confusion being created.. It is not a gift of small quantities of land out of a larger quantity and, therefore, difficult to ascertain. There is no difficulty in ascertaining the half , and we do not think that it matters much whether the right half pr the left half was given. Regard ought also to be bad to the nature of the defense in this case, namely, that the document was not properly executed and various other grounds taken of that character which have all failed.
3. We think that the gift ought to be upheld and the plaintiff is declared entitled to the whole of the land in Schedule kha under the deed of gift and as heir to half of the remaining lands in Schedule ka.
4. With regard to mesne profits it is conceded that the plaintiff is entitled to mesne profits of the portion of which he was kept but of possession, that is, the 16 annas of Schedule kha.
5. A point was also taken that the gift was a conditional gift and is, therefore, inoperative. But the Muhammadan Law as it stands is this, that when a gift is made subject to a condition which derogates completely from the grant, the condition is void and the gift will take effect as if no condition is attached to it. See Baillie's Muhammadan Law 547 and the case of Muhammad Abdul Majid v. Fatima Bibi 12 I.A. 159 : 8 A. 39 (P.C.) : 4 Sar. P.C.J. 670. There is also a condition in the document in the nature of a trust to maintain the lady during her life. That does not make the gift inoperative. In one portion of the document the lady speaks of an immediate gift and in another portion of the gift she says that she would have power to possess during her lifetime,' But the earlier portion is the operative portion by which an immediate gift was made, and in the later portion she wanted to say that if the conditions were not fulfilled she would claim to take the property back herself. Therefore, from every point of view the document seems to us to be a proper one and, therefore, effect should be given to it.
6. The appellant is entitled to his costs of this appeal.
7. The cross objection is dismissed without costs.
8. Plaintiff is to be given khas possession with regard to the lands in Schedule (kha). His title is declared with regard to annas share of the remaining lands of (ka)