A gift through the medium of trust is valid under Mohamedan Law, and possession of the subject matter of the gift is not necessary for a valid gift as long as there is a bona fide intention to give.

Indira Banerjee, J.

This appeal is against a judgment and decree dated 9th November, 2000, passed by the learned Civil Judge (Senior Division, Sealdah Court, South 24-Parganas, allowing Title Suit No.171 of 1996 (Mrs. Sabiha Begum & Ors v. Mrs. Ershad Begum & Ors.) for partition and accounts.

2. At all material times, Md. Faiyaz, since deceased, was the owner of premises No.189, Park Street, Kolkata 17, comprising of 8 kottas of land and a two storied building standing thereon, which is hereinafter referred to as the suit property. The respondent no.1 in this appeal, Ms. Sabiha Begum (the plaintiff in the suit), is one of the daughters of the said Md. Faiyaz. She is the daughter of Md. Faiyaz, through the original appellant no.1, Mrs. Ershad Begum, (defendant No.1 in the suit) who Md. Faiyaz had married, after the death of his first wife.

3. It appears that on 27th April, 1973, Md. Faiyaz executed a Deed of Trust whereby he appointed his second wife, Mrs. Ershad Begum, mother of the plaintiff Ms. Sabiha Begum and the defendant Nos. 2 to 6, as the sole trustee to hold the suit property, in trust, for the benefit of his five minor sons, being the appellant nos.2 to 6.

4. Md. Faiyaz had four sons from his first wife. After the death of his first wife, Md. Faiyaz had remarried Ershad Begum and from his second wife, he had five sons and three daughters, including the plaintiff, Ms. Sabiha Begum.

5. After the death of Md. Faiyaz, Ms. Sabiha Begum, his eldest daughter through his second wife, instituted the suit being Title Suit No.171 of 1996 in the Court of the Assistant District Judge at Sealdah, for partition of the suit property, and accounts, claiming that by operation of the Hanif School of law she became the undivided co-sharer of the suit property to the extent of 4.17% share, upon the death of her father. Sabiha’s own mother Ershad Begum, named trustee under the deed of trust executed by Md. Faiyaz on 27th April 1973, was impleaded defendant no.1.

6. The defendants filed their Written Statement and contested the suit. In fact, a common Written Statement was filed on behalf of the defendant nos. 1 to 6 and defendant nos. 8, 9, and 12 filed separate Written Statements. The contesting defendants inter alia contended that the suit was barred by limitation. In their written statement, the contesting defendants also claimed that the Deed of Trust had been acted upon. The suit of the plaintiff for partition was, therefore, liable to be dismissed.

7. According to the plaintiff after the death of her father, Md. Faiyaz, her mother Mrs. Ershad Begum, being the defendant no.1, had been looking after the suit property and realizing the rent and profits from the suit property, but not giving the plaintiff her share.

8. The plaintiff stated that she had been compelled to demand partition by a letter dated 18th December, 1995, written through her advocate and also to ask for accounts. In reply to the said letter of the plaintiff, the defendants told her that Md. Faiyaz, the plaintiff’s father and husband of the defendant no.1 had executed a Deed of Trust dated 27th April, 1973, whereby he had appointed the defendant no.1, Ershad Begum as trustee for maintenance and preservation of the suit property and also for the welfare of the defendant nos.2 to 6. In accordance with the direction in the trust deed, the property had vested in the defendant nos.2 to 6.

9. Under Mohamedan Law every Mohamedan of sound mind, who is not a minor, is entitled to dispose of his property by Will. Such Will (Vasiyyat) may be made either verbally or in writing. However, a Mohamedan cannot by Will dispose of more than a third of the surplus of his estate, after payment of funeral expenses and debts. Bequests in excess of the legal one third cannot take effect unless the heirs consent thereto after the death of the testator.

10. The plaintiff claimed that the deed of trust, if any, whereby Md. Faiyaz had alienated his entire property, was in contravention of the pr