Reservation of usufructs during the donor's lifetime does not invalidate a gift deed under Muslim Law.

P.K. Shamsuddin, J.

1. Plaintiff in O.S. No. 128 of 1982 on the file of the Sub Court, Badagara, is the appellant. The suit is for a declaration that the gift deed executed by the plaintiff is not acted upon.

2. The plaint schedule property belonged to plaintiff. He executed a gift deed in favour of his wife the defendant on 25th January 1980. According to the plaintiff though gift deed was executed it was not acted upon and it was only a sham transaction and invalid in law. He averted ' that the original document was with him but his wife stealthly removed it and took it to her residence.

3. Defendant contended that the suit is not maintainable, that it was executed conveying the title to the property to the defendant, that the averment that the original gift deed was with the plaintiff but was subsequently removed by her, was false, that the plaintiff, after taking back the document from the Registrar's Office, handed over the same to her and it was acted upon and that therefore the plaintiff has no right over the property.

4. The Court below held that the gift deed is valid and that it was acted upon and in that view of the matter the suit was dismissed.

5. In this appeal, learned counsel for the appellant has challenged the finding of the trial Court. Ext. B-1 is the original gift deed and it was produced by the defendant. Ext. A-1 is the registration copy of the gift deed. Learned counsel for the appellant contended that delivery of possession is an essential ingredient for a valid gift and the provision in Ext. B-1 that the donor was entitled to reside in the house and to take the usufructs from the properties would render the document invalid under the Muslim Law. He also contended that though a document was executed it was never acted upon and that he continued in possession of the property and enjoyed the usufructs from the plaint schedule property. Learned counsel also heavily relied on a decision of a Division Bench of this Court in Beepathumma and others v. Mohammed Nakoor Meera Rowther and. others I.L.R. 1976 (2) Kerala 137 in support of his contention.

6. In order to appreciate the contention of the learned counsel for the appellant it would be profitable to quote the relevant recital in Ext. B-1.

xxx xxx xxx.

It is clear from the above recital that the donor has only reserved a right to take usufructs and to reside in the house in the property and the entire possession was made over to the donee. In view of the unambiguous recital in the document that possession was made over to the defendant, the contention of the learned counsel for the appellant that no possession was made over to the donee cannot be countenanced. The relevant recital in the document which J was subject matter of decision in Beepathumma's case I.L.R. 1976 (2) Kerala 137 (supra) has been extracted at page 140 in I.L.R. (2) Ker. 137, which reads as follows:

xxx xxx xxx

In the above referred case, no possession was made over and the donor was allowed to be in possession and to take the usufructs during his life-time. The Division Bench observed that in view of the requirement of Muslim Law that delivery has to be given to make a gift complete, the gift in that case cannot be considered as a valid gift. In the instant case possession was made over and only the right to take usufructs and to reside-in the house was reserved by the donor.

7. In Ibrahimkunju Shahul Hameed and others v. Pakkeer Muhammed Kunju and others I.L.R. 1984 (2) Kerala 337 a Division Bench of this Court, after reviewing the entire case law on the point, held that the mere fact that the donor reserves the right to take usufructs during his life-time does not mean that possession is not given to the donees and such a reservation is quite consistent with delivery of possession of the properties to the donees. In the case which came before the Division Bench the deed of gift provided that the whole of the usufruct would be taken by the donor during his life-time.

8. In Kunhamina v. K