M. Syed Mydeen and Another vs M.S. Khaja Mohideen and Others

K. Shanmukham, J.—Very rarely do interesting question on Mohamedan Law fall for consideration. The present appeal poses two nice

questions for solution.

Let me now turn to facts which are not in dispute. Indeed, the disposal of this appeal depends upon the construction of a deed of gift, executed

by the grandfather of the respondents, by name, Myatti Mohammedu Masthan Lebbai. The document is marked as Ex.A-1, dated 9.3.1939. I will

be referring to the relevant portions in the said document in due course.

According to the respondents who came forward with O.S. No. 779 of 1975 on the file of the District Munsif''s Court, Tirunelveli, under the

said gift deed, the suit properties are to be enjoyed by their father for his life and thereafter by the respondents absolutely. Also according to the

respondents, the true intention of the settlor (their grandfather) as per the terms of the deed read as a whole is that their father should enjoy the

usufructs of the property only without any power of alienation of the corpus and after his lifetime, the respondents, his sons are to enjoy the

property taking the corpus absolutely. It may be stated at once that as the respondents'' father is still alive, the suit is instituted for a bare

declaration that the alienations made by their father in favour of some of the respondents or in favour of the vendor of some of the respondents

would not bind their interests, but would only be valid during the lifetime of their father. The common defence is that under Ex.A-1, an absolute

interest is conferred on the respondent''s father, that the subsequent clause derogating from the original grant of absolute title is invalid in law, that,

therefore, the respondent''s father is absolutely entitled to the suit property and that consequently the suit shall fail. I am not referring to other

defences, because those do not arise for consideration in this second appeal.

In the course of arguments in this second appeal, a new point of law but based on the admitted evidence on record, was raised by Mr. T.R.

Mani, learned Counsel for the appellants (defendants in the suit) on the findings in paragraph No. 9 of the judgment in A.S. No. 35 of 1977 on the

file of the Subordinate Judge of Tirunelveli, that the plaintiffs are not born at the time of Ex.A-1, even assuming that the father was given only a right

to usufructs for his life under Ex.A-1, the gift of the corpus in favour of the respondents is invalid in Mohamedan Law:

On the construction of Ex.A-1, the trial Court held that the earlier clause in Ex.A-1 conferred an absolute title on the father of the respondents,

that the latter clause imposing a restriction is void under Mohamedan Law and that therefore, the respondents'' father obtained absolute title to the

suit property under Ex.A-1. It therefore dismissed the suit with no order as to costs. On appeal the learned Subordinate Judge held that the

particular clause conferring absolute title on the father of the respondents in the first instance is a preamble to the document and that on a proper

construction of the document, it is clear that the respondents'' father was given a right to usufruct only of the suit property for his life. He therefore,

allowed the appeal and decreed the suit as prayed for but without costs. Hence, this second appeal. The two interesting question are: (i) whether a

gift of corpus to a person not in existence is void, and (ii) whether the Mohamedan Law has any influence on the construction of a gift deed

executed by a Mohomedan.

The original concept of Mohamedan Law is that the gift should be a transfer of all the interests in a property without any restriction whatever

even as regards immediate enjoyment. In Mohamedan Law, it is called hiba. In Amjad Khan v. Ashraf Khan (1929) 30 L.W. 91 : (1929) L.R. 56

La. 213 : (1929) 57 M.L.J. 439 : AIR 1929 P.C. 149, the donor by the terms of the deed purported to make a gift without consideration to his

wife of the entire property, he divided the property into two parts, one-third and two-thirds, with a view to giving his wife a power to alienate the

one-third of the property or any part thereof by way of mortgage, sale or gift, it was further provided that after the death of the donee, the entire

property gifted should revert to the donor''s collaterals named therein subject to any mortgage, sale or gift effected by his wife during her lifetime in

respect of the one-third part of the property. It was held that the donor intended to make and did make a gift to his wife of a interest only in the

entire property comprised in the deed together with the above mentioned power of alienation in respect of one-third of the property. Thus, the

proceedings was disposed of by the Privy Council on the construction of the deed itself. The particular question whether the gift of the corpus in

favour of an unborn person is valid or not, was not considered by the Privy Council in that case. It is only in AIR 1948 134 (Privy Council) , it was

ruled as follows:

In general, Muslim Law draws no distinction between real and personal property, and it does not recognise the splitting up of ownership of land

into estates, distinguished in point of quality like legal and equitable estates, or in point of duration like estates in fee simple, in tail, for life, or in

remainder. What Muslim Law does recognise and insist upon, is the distinction between the corpus of the property itself (ayn) and the usufruct in

the property (manafi). Over the corpus of property the law recognise only absolute dominion, heritable, and unrestricted in point of time, and

where a gift of the corpus seeks to impose a condition inconsistent with such absolute dominion the condition is rejected as repugnant; but interests

limited in point of time can be created in the usufruct of the property and the dominion over the corpus takes effect subject to any such limited

interests. This distinction runs all through the Muslim Law of gifts-gifts of the corpus (hiba), gifts of the usufruct (ariyat) and usufructuary bequests.

No doubt, where the use of a house is given to a man for his life he may, not inaptly, be termed a tenant for life, and the owner of the house,

waiting to enjoy it until the termination of the limited interests, may be said, not inaccurately, to possess a vested remainder. But though the same

terms may be used in English and Muslim Law, the describe much the same things, the two systems of law are based on quite different conceptions

of ownership. English law recognises ownerships of the land limited in duration. Muslim law admits only ownership unlimited in duration, but

recognises interests of limited duration in the use of property. 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.

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 upon construction, the gift is held to be one of a

limited interest the gift can take effect 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.

Thus, the old concept of Mohamedan Law underwent a modifications whereby the gift of an usufruct in favour of an individual for his life was

recognised under Mohamedan Law. In other words, there can be a valid gift of an usufruct in favour of A''s children or others as stipulated in the

deed of gift.

In this case, I had already referred to the finding rendered by the learned Subordinate Judge to the effect that the respondents are not born at

the time of Ex.A-1. For the present, let us assume that under Ex.A-1, the respondents'' father was gifted only a right to usufruct in the suit property

for his life and that the suit property vested absolutely on the respondents after the lifetime of their father. It is now useful to refer to that particular

clause which runs as follows:

...therefore, you, the above named Nos. (1) to (5) shall from this day absolutely enjoy your respective I to V Schedule properties without

subjecting your respective shares to any encumbrance whatsoever and that after the lifetime of every one of you, the legal heirs of every one of you

shall absolutely enjoy the respective I to V Schedule properties with full powers of alienation and disposal....

It has to be stated at once that No. 2 is the father of the respondents and that the suit properties are second schedule properties to the document.

It is thus clear that according to the plain language employed in the document, the corpus was gifted to the respondents after the life time of their

father. I have already referred to the fact that at the time of Ex.A-1 none of the respondents was born. The immediate question is whether the gift

of a corpus in favour of an unborn person is valid. In paragraph No. 141, Mullah on Mohamedan Law, has stated a gift to a person not yet in

existence is void. The learned author refers to his support the following authorities viz., Abdul Cader v. Turner ILR (1885) 9 Bom. 158, Mahomed

Sahib v. Official Trustee, Bengal ILR (1909) Cal. 431 and Imam Saheb Vs. Ameer Sahib and Others, , so far as his proposition of law is

concerned, two renowned authors on Mohamedan Law, viz., Tayyibji and Fyzee do concur. In paragraph No. 370 Tayyibji states-

A hiba to a person not in being is void, but limited interests may be created in favour of a grantee who is not in being; provided that he is in being

when his interest opens out.

In paragraph No. 43, Fyzee has stated-

A hiba, being the absolute transfer of all rights in property, cannot be made to an unborn person as there is no one to take possession of his

interest. But limited interests and usufructs stand on a different footing; they can be created in favour of a person not in being at the time of the

grant, provided he is in being when his interest opens out. Thus, if a life interest is granted to A, and thereafter to B, it is sufficient if B is in being at

the death of A.

Thus, the law is well settled as on this date that a gift of a corpus in favour of a person not in existence is void; in other words, there cannot be a

valid gift of hiba to a person not in existence at the time when the gift is made. It would therefore, follow that the gift in favour of the respondents

who were not in being at the time of Ex.A-1, is void; in other words, the respondents do not derive any interest in the suit property under Ex.A-1.

Nevertheless, Mr. B. Kumar learned Counsel for the respondents, referred to the change in Mohamedan Law with reference to the gift of

usufructs. The learned Counsel referred to the passage in the text book of Tayyibji and Fyzee. I have already extracted the relevant portions.

According to the learned authors, there can be a valid gift of usufructs, which is known as limited interest in favour of a grantee who is not in being

provided that he is in being when his interest opens out. Such a statement of law, we do not find, in Mullah''s Principles of Mohamedan Law.

Above all, in Imam Sahib v. Ameer Sahib (1955) 1 M.L.J. 449, Balakrishna Ayyar, J., had held that the direction that five mudis of rice should be

paid to the male descendants of the daughters is bad in law because it would be a gift to persons not in existence on the day when the document

was executed. Thus, one of the ratios laid down by Balakrishna Ayyar, J., is that a gift even of usufruct to a person not in being at the time of the

gift is bad under Mohamedan Law. Indeed, it is significant to notice that this decision is referred to as an authority in the book Mullah''s Principles

of Mohamedan Law in paragraph No. 141, edited by an eminent jurist Mr. Justice Hidayathullah and published in the year 1977. Thus the law

stated to the contrary in Tayyibji and Fyzee may not be correct.

Be that as it may, in the instant case, it is ''hiba'' of an ''ayan'' that is gifted to the respondents, on their own submission that their father was given

a right to usufruct in the suit properties for life and the corpus to them absolutely. As already stated, all the authors agree that such a gift to a person

not in being at the time of gift is bad in law. Then, the respondents have no shadow of title to the suit properties. Consequently, their suit shall fail.

On this point alone, the second appeal has to be allowed. So, I am not adverting to the other question.

Accordingly, the second appeal is allowed; the judgment and decree of the first Appellate Court in A.S. No. 35 of 1677 are set aside and

those of the trial Court in O.S. No. 779 of 1975 are restored. There will be no order as to costs.