Validity of life estate in maintenance law.

Judgment.-In this originating summons the question is about the interpretation of a particular clause in a settlement deed. The first defendant who is the brother of the Plaintiff executed the settlement deed dated 1st June, 1963 in favour of the plaintiff. Three items of properties are dealt with in the settlement deed. In items 1 and 2 the plaintiff had an l/3rd share in her own right. The first defendant had the remaining 2/3rd share. The whole of item 3 belonged to the first defendant. Under the settlement deed, the first defendant gifted his 2/3rd share in items 1 and 2 and the whole of item 3 to the plaintiff and her children. The relevant clause which requires interpretation is in the following terms:

“That in consideration of the premises the settlor hereby settles and transfers to the settlee for her life without any right of alienation and thereafter on her children both male and female absolutely the properties mentioned in the schedule hereto and that the settlor has put the settlee in possession of the said properties and the settlee shall possess and enjoy the said properties free from the claims of the settlor or any person or persons claiming under him.”

Defendants 2 to 9 are the children of the Plaintiff among whom the ast two were born after the execution of the above settlement deed.

2. According to the plaintiff, the clause in the settlement deed should be interpreted as an absolute gift of the properties to her but with a condition not to alienate the same, and that the condition is invalid.

3. The contention of Mr.Amjad Nainar, learned counsel for the plaintiff is that the gift of life estate is unknown to Mahomedan law, that if under a document of gift life-estate is sought to be created it must be construed as a gift and a condition, which condition is invalid and that the gift which is mentioned as of a life-estate operates as on absolute gift. This contention is not acceptable.

4. Certain observations of the Privy Council in three cases resulted in some Courts holding that in every case of gift of life-estate it must be deemed that there was a gift and a condition and that the condition being invalid the gift operates as an absolute gift. In Mussamut Humeeda and others v. Mussamut Budlam and the Government1the Privy Council observed that the creation of a life-estate did not seem to be consistent with Mahomedan usage. However, it may be noted that even in this decision the Privy Council did not hold that under Mahomedan law life-estate can never be created All that their Lordships of the Privy Council stated was that creation of life-estate did not seem to be consistent with Mahomedan usage and therefore there ought to be very clear proof if the Court were to hold that such life-estate had been created. In Abdul Gafur and others v. Nezamuddin and others2, also it was observed that “life-estate”, which is a kind of estate does not appear to be known o Mahomedan law. In Abdul Wahid Khan v. Mussamat Naran Bibi and others1it was observed by the Privy Council that Mohamedan law does not recognise vested estates in remainder.

5. It is on the basis of the above observations of the Privy Council, it has been contended that if what is purported to be gifted s a life estate it must be deemed to be a gift with a condition and that the condition being invalid, the gift must be taken to be an absolute one. But that is not correct. In Amjad Khan v. Ashraf Khan 2, the Privy Council had to deal with a case where the donor gave his wife an l/3rd share of his property with power of alienation and gave the rest 2/3rd share for her lifetime. The gift deed further stated that after the death of the donee the entire property shall revert to the donor’s collaterals. (The donee had not exercised the power of alienation in respect of the l/3rd share). After the donee’s death her heirs claimed the property as against the donor’s collaterals. The Privy Council negatived the claim of the donee’s heirs in respect of the entire property

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