Judgement

Consolidated Appeal (No. 125 of 1926) from two decrees of the Court of the Judicial Commissioner (December 2, 1924) varying a decree of the Subordinate Judge of Bara Banki.

The main questions for determination on the appeal related to the construction and legal effect of a deed of gift dated January 17, 1894, executed by a Sunni Mahomedan in favour of his wife.

The terms of the deed and the facts of the case appear from the judgment of the Judicial Committee.

The Subordinate Judge held that there had been a delivery of possession to satisfy Mahomedan law, the donor having managed the properties as agent for the donee. He construed the deed as giving the donee an absolute estate in one-third of the property, but not more than a life estate in the rest.

Both parties to the suit appealed. The learned Judicial Commissioners differed on the question whether there had been a sufficient delivery of possession; they agreed in holding that the intention of the donor was to give a life interest, but they differed as to the validity of such a gift under Mahomedan law. As, however, they agreed that the donee had no heritable interest in the property, the plaintiffs appeal was dismissed and the defendants appeal allowed.

The plaintiff subsequently applied for a review, contending that in any case the donee was entitled to one-fourth of her husbands property, and that that share devolved upon the plaintiff as her sole heir. The application was dismissed on the ground that the claim had not been made in the plaint.

1929. Feb. 4, 5. S. Hyam for the appellant. The deed by its express terms purported to be a gift of the corpus of the property subject to conditions inconsistent with complete ownership. The effect in Mahomedan law is that the gift was valid but the conditions void Ameer Alis Mahommedan Law, 4th ed., pp. 133, 134 ; Wilsons Anglo-Muhammadan Law, para. 313. The deed cannot be read as intending to create an ariat, or loan for use, which involves no transfer of ownership. A Sunni Mahomedan cannot validly make a gift of a life interest in property Hamiltons Hedaya, p. 489 ; Humeeda v. Budlun (( 1872) 17 S. W. R. 525.) ; Suleman Kadr v. Darab Ali Khan (( 1881) L. R. 8 I.

A. 117,122.) ; Mahommed Faiz Ahmed Khan v. Ghulam Ahmed Khan (( 1881) L. R. 81. A. 25.); Abdul Walid Khan v. Nuran Bibi (( 1885) L. R. 12 I. A. 91.) ; Umes Chunder Sircar v. Zahoor Fatima (( 1889) L. R. 17 I. A. 201.) ; Banoo Begum v. Mir Abed Ali. (( 1907) I. L. R. 32 Bom. 172.) A Mahomedan can create a life interest by contract, but it was not established that the deed was the result of an arrangement among the family.

[Their Lordships intimated that they were satisfied prima facie that there had been a delivery of possession in accordance with Mahomedan law.]

Dube for the respondents. The deed should be liberally construed so as to give effect to the real intention disclosed Hunoomanpersauds Case. (( 1856) 6 Moo. I. A. 393, 411.) Both judges in the Appellate Court were of opinion that the intention was to give a life estate in the whole property. Upon the true construction of the deed the subject-matter was a life estate, not the property itself subject to condition. Consequently, the Mahomedan law as to gifts with a restrictive condition does not affect the matter. Upon that construction there was not what the Hedaya terms a " retraction." Judgments of the Privy Council do not preclude a life estate being the subject of a gift by a Mahomedan Umjad Ally Khan v. Mohumdee (( 1867) 11 Moo. I. A. 517.) ; Mohammad Abdul Ghani v. Fakir Jahan Begam. (( 1922) L. R. 491. A. 195, 209.) In Banoo Begum v. Mir Abed Ali (( 1907) I. L. R. 32 B. 172, 176.) Sir Lawrence Jenkins, in holding that among Shias a life interest can be created, pointed out that the judgment of the Board in Humeeda v. Budlun (( 1872) 17 S. W. R. (Civ. Rul.) 525, 527.) had not discarded the possibility of such a transaction among Mahomedans. The creation without consideration of a life estate by a M