Courts should interpret the deed so as to effectuate the intention of the parties without violating either the provisions of law or the rules of construction.

JUDGMENT: The question that arises for consideration in this appeal is what is the proper construction of the Ex.A-3 the Deed of Settlement.

"Gift Settlement to Daughter Property Value Rs.8,750.

2. According to the plaintiff, who is the brother of the Settlee Fathima Beebi what was given was a life estate which is unknown to Muslim Law. So the Settlee got an absolute estate without the restrictive condition which is void. The Settlee’s husband had remarried even during her lifetime. She died on 4.12.1974. The Settlor, who is the mother of the plaintiff and the Settlee died on 27.3.1978. The Settlee’s husband Kamaludin died on 23.3.1982. Since the plaintiff came to know that Kamaludin had executed a Settlement Deed in favour of the respondents 1 to 8, his children through second wife, and since efforts at amicable partition proved futile, the plaintiff was constrained to seek for partition of his share. According to the plaintiff, no vested remainder was granted in favour of Kamaludin and the plaintiff is entitled to 3/4 share in the suit property which had vested absolutely with her (his) sister, the Settlee.

3. Only the defendants 2 to 5 resisted the suit. According to them, under the Settlement Deed Fathima Beebi, the Settlee, got only the right to enjoy the usufruct and, in fact, the properties were gifted to Fathima Beebi’s husband and his heirs and after Fathima Beebi’s death, the property vested in Kamaludin, the husband, absolutely who had, in turn, settled the property to the defendants and therefore, there was no property liable for partition and the suit was also barred by limitation and hence the suit had to be dismissed.

4. The learned trial Judge dismissed the suit on the ground that on a construction of Ex.A-3 what was given to Fathima Beebi was only the right to enjoy the usufruct and therefore, the restriction on enjoyment of the property under the ‘Settlement Deed’ was really no repugnant to the grant and the absolute estate in the property vested in Kamaludin and his heirs after the life of Fathima Beebi. The question of limitation was answered in favour of the plaintiff. Aggrieved by the dismissal of the suit, the plaintiff has filed the present appeal.

5. The appellant’s success or otherwise will depend upon how the construction of the document Ex.A-3 is construed. If under the document, the corpus was given to the Settlee, then the Settlee will take it absolutely without any restriction, and the appellant will succeed. But if what is given to Fathima Beebi is only the right to enjoy the usufruct and the corpus to her husband, then Fathima Beebi’s right in the property comes to an end with her life and the appeal will fail.

6. According to Mr.N.V. Nagasubramanian, the learned counsel would submit that, from the recitals of Ex.A-3, it is seen that a valid gift was made in favour of Fathima Beebi as per the tenets of Muslim Law. There are three essentials of a gift under Muslim Law.

(1) A declaration of gift by the owner.

(2) An acceptance of the gift expressed or implied by or on behalf of the donee, and

(3) Delivery of possession of the subject of the gift by the donor to the donee. Unless these conditions are complied with, a gift is not complete.

7. All the three essentials were fulfilled so far as the gift to Fathima Beebi was concerned. According to the learned counsel however there was neither declaration nor acceptance nor delivery and therefore, there was no gift, to support the contention that a gift of the vested remainder was made to the Settlee’s husband.

8. The learned counsel submitted that if one were to construe the document as one which gifts the vested remainder to Kamaludin after the lifetime of the Settlee, such construction would be bad under Muslim Law, since there can be no gift which can take effect at a future period. The learned counsel referred to Mullah’s Principles of Mohameeden Law XVIII Edition, Sec.162, which reads as follows:

Gift in futuro a gift cannot be made of anything to be perfor

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