Alimamma vs Amade Beari and Others

Kumaraswami Sastri, J.—This second appeal turns on the construction of Exhibit C which purports to be a wakf deed giving certain

property to two minor girls. The deed Exhibit C says that the two girls may enjoy the property from generation to generation according to female

descent. Then it goes on to state that they should perform charities on the anniversary days of their ancestors in the house situated in the Bagayat of

the land and that they should not alienate the property in any manner and that if any alienations were made, they would be void. It concludes that

their male descendants and their descendants and the husbands of the female descendants shall have no reason to claim any manner of right in the

property. One of the donees died and her husband and her son who are the plaintiffs have filed this suit for partition. The defence of the defendants

was that under the wakf deed the plaintiffs had no right to the property presumably on the ground that the donee''s husband and the son were male

heirs. The written statement affirmed that the document was a wakf deed and also raised other defences as regards moveables and other items of

property claimed in the plaint. The District Munsif was of opinion that though the deed purports to be a wakf deed, it was really a deed of gift. The

District Judge also was of that opinion. He says:

Exhibit C is described as a wakf deed but it is really a gift deed in favour of the two sisters. That the two sisters were required to perform dhana

dharma, etc., does not in any way show that they were not given absolute right in the properties. The provision in Exhibit C that the properties

were to descend only in the female line is certainly opposed to the rule of Muhammadan Law and is, therefore, invalid. It is clear from the

documentary evidence that the two sisters had absolute interest in the plaint property and that the plaintiffs as the heirs of the deceased Athijamma

are entitled to a share in it.

Although in the Lower Court no question was raised as to the plaintiffs not being entitled to anything even assuming that it is a deed of gift, it is

contended before me that the plaintiffs would have no title because the provision in the deed of gift that the property should descend only in the

female line is invalid and that because of the restrictions in regard to alienation they were only entitled to life-interest at best. Reliance is placed on

Das a Naicken v. Kunha Ahamed Koya (1925) 51 M.L.J. 69 and it is argued that the whole transaction is invalid, which, if passed, would cut at

the root of both the plaintiffs'' and the defendants'' title. Reference is made to Madura Hindu Permanent Fund v. Kamakshi Animal (1925) 50

M.L.J. 355 as suggesting that at least the donees will have a life-interest in the property and on the death of the donees"" the other would get the

property. Reference has been made to Amjad Khan v. Ashraf Khan (1929) 57 M.L.J. 439 (P.C.) and it is argued that the heirs of one of the

donees under a deed which contains invalid clauses as to the remainder would not get an absolute estate but would get only a life estate. It is

argued that this last decision overrules the several previous decisions on the point. It has been decided in numerous cases that where a gift is made

by a Muhammadan of a life estate with remainder to another person the donee takes the property absolutely, the further conditions being treated as

void. I may refer to the decision in Marangami Rowthen v. Nagur Meera Labbai (1912) 24 M.L.J. 258 where all the authorities are collected. The

learned Judges observed:

The life estate is granted to Ismail Ammal in consideration of the Mahar and share due to her according to Muhammadan Law and the remainder is

granted to Nagore Meeranna in consideration of the share due to him and the release of his rights to a share in the other properties belonging to the

donor. The conveyance of an interest in remainder or interests in future has been frequently held to be invalid according to Muhammadan Law.

Where a life estate is given with remainder to another person, the donee of the life estate takes the property absolutely.

The learned Judges referred to (a) Casamally Jairajbhoy Peerbhoy Vs. Sir Currimbhoy Ebrahim Bart, , (b) Mahomed Ibrahim Haji Gulam

Saheb Londay Vs. Abdul Latif Haji Mahomed Ibrahim Jitayker, , (c) Abdul Karim Khan v. Abdul Qayam I.L.R.(1906) A. 342 (d) Muhammad

Shah v. Official Trustee of Bengal I.L.R.(1909) C. 431 (e) Musammat Hemade v. Musmmat Bulden and Government (1871) 17 W.R. 527 (P.C.)

and (f) Abdul Gafur v. Naizamuddin ILR (1893) B. 1 (P.C.). Mulla in his book on ""The Principles of Muhammadan Law"" states thus:

When a gift is made subject to a condition which derogates from the completeness of the grant, the condition is void and the gift will take effect as

if no condition were attached to it.

He gives the following illustration:

A makes a gift of a house to B during the life of B. The condition that A shall have the house for life is void and B takes an absolute interest in the

property as if no condition were attached to the gift.

He also refers to Hedaya, p. 489, which states:

A gift for life is nothing but a gift and a condition; and the condition is invalid.

He also refers to Hedaya, p. 488, which states:

Under the Hanafi Law a grantee of a life estate takes an absolute estate.

Similar view is taken by Tyabji in his book on ""The Principles of Muhammadan Law"". In paragraph 444 the learned author states:

According to Hanafi Law where a person purports to make a ''hiba'' and to restrict the donee''s rights in the subject of ''hiba'' for his life (or for any

other limited period) the donee takes an absolute estate, and the subject of ''hiba'' devolves upon the heirs of the donee after his death.

He then refers to cases on the subject.

It is argued by Mr. Sitarama Rao, the learned Advocate for the appellant, that the decision in Amjad Khan v. Ashraf Khan (1929) 57 M.L.J.

439 (P.C.) reverses the current of the authority. In that case it was held that there was an express clause giving the remainder to the heirs of the

donor on the death of the donee and not merely a case of an invalid limitation being added. Possibly on that ground that decision may be

distinguished. Their Lordships also held that there was a distinct intention of the donor that the estate should go to the heirs of the donor on the

termination of the life estate. The question as to whether a life estate can be created under Muhammadan Law was left open. In the case referred

to in Marangami Rowthen v. Nagur Meera Labbai (1912) 24 M.L.J. 258 and in other cases there does not seem to be any such express clause.

There is merely a condition added. There is of course a clause about succession which is unknown to Muhammadan Law. I am not prepared to

hold that the decision in Amjad Khan v. Ashraf Khan (1929) 57 M.L.J. 439 (P.C.) overrules the current of the authority in the absence of any

definite pronouncement by the Privy Council.

Turning to the deed, Exhibit C, I doubt very much whether the intention of the donors was to give only a life estate though they clearly intended

to limit the power of the donees and to direct the succession in a particular way. It is really a case of a gift with an invalid condition as to alienation.

As I said before, the ground taken by the defendants in contesting the suit was not that the whole document is invalid. They proceeded on the

footing that it was a valid wakf. The question of invalidity arose because of the finding of both the Courts below that it is really a deed of gift though

in form of a wakf.

Under these circumstances, I do not think, though with some hesitation, that I should disturb the decree of the Lower Court as regards the

particular items of property in dispute covered by Exhibit C.

The second appeal fails and is dismissed with costs.