The main legal point established in the judgment is the validity of a gift deed under the Mohammedan law, specifically regarding the transfer of title and possession, the reservation of the right to take the income from the property, and the requirement of delivery of possession for a valid gift.

P. Subramonian Poti, J.

1. A preliminary objection is raised. In execution of a decree for recovery of money obtained against the assets of deceased Kunhimoideenkutty Haji represented by his wife and children certain item of property was attached, to which first defendant, the wife of Kunhimoideenkutty Haji laid claim as her own. Since she was not personally liable under the decree she contended that the attached item was not liable to be proceeded against and the attachment should be raised. The claim to that item was based on a gift Ex. Al dated 2-7-1951 from her deceased husband. The gift was long prior to the suit. The answer of the decree holder was that the gift was void under the Mohammedan law as it did not convey possession. If it was not so void the objection by the first defendant was sustainable and proceedings could not be taken. Therefore the question that had to be decided on the objection was whether there was delivery of possession under the gift deed Ex. Al, and if not whether the gift was void in law. The execution court held that the gift was void. The appellate court concurred with this. Against that this second appeal has been filed.

2. The preliminary objection relates to maintainability of this appeal. According to counsel for the respondent who is the decree holder no appeal lay against the order passed by the execution court as that was on a claim under O.21 R.58 of the Code of Civil Procedure. If that be the provision applicable no appeal lay. But if the adjudication was one under S.47 of the Code of Civil Procedure an appeal to the court below and a second appeal to this court could be maintained.

3. The objection to the attachment was raised by a party to the decree. It is true that the claim was based upon an independent right. But even such a claim when raised by a party to the decree is one concerning the execution of the decree and the matter falls under S.47 of the Code of Civil Procedure. But in a case where the claim is urged in another capacity such as a trustee on behalf of a trust, as a guardian of the minor on behalf of the minor or as the mahanth of a Matt, the objection would not fall under S.47. since though the individual who files the objection happens to be the same it would be as a different legal personality that he would be making such objection. In such an event the claim petition would be one under O.21 R.58 of the Code of Civil Procedure. No appeal would lie against such order. The case cited before me by counsel for the first respondent in Madras Chit Fund Ltd. v. Krishnamoorthy (1963 KLT 605) was a case of a claim by a trustee of a trust who happened to be personally the defendant in the suit. It follows that the appeal lies to this Court.

4. On the merits the question is whether Ex. A-1 is a void document as contended by the decree holder. On the facts of this case the point for decision would be whether when a donor reserves to himself the right to take the usufructs from the property gifted but otherwise permits the enjoyment of the property by the donee, the gift would be void. Would it be different from a case where the donor reserves possession of the property in himself while giving the property by way of gift to the donee? Before I go into this question I will refer to the terms of Ex. A-1.

5. The gift is executed by Moideenkutty in favour of his wife Kunhayissu on the eve of his leaving for Mecca on Haj pilgrimage. He refers to the contribution by the donee for acquisition of the properties gifted. Then he provides that till his death the income from the property was to be taken by him and out of that after paying the tax and rent the balance was to be appropriated by him. Reserving this right in himself he was gifting the property to the donee. He further mentions that he has no right thereafter in the property excepting to take the usufructs from time to time. The donee was to be in possession as owner of the property and enjoy it. It also mentions that the ap