Principles of administration of Mohammedan law.

Krishnaswami Nayudu, J.:-In this Appeal the question as to the validity of a gift executed by a Muslim comes up for consideration.

The kanam rights in the suit properties belonged to one Muhammad Kutti. He executed a gift deed Exhibit A-2 dated 22nd April, 1931, in respect of four items of properties in favour of his two grandchildren, one Unniankutti and the 6th defendant who was a minor. Under the gift, possession of the property was retained with the donor, who reserved to himself the right to be in possession and enjoyment of the same till his death without powers of alienation and after his death the donees were to hold the properties in their possession and enjoy the same with full powers of sale and alienation. After the death of the donor Unniankutti for himself and on behalf of the 6th defendant, who continued to be a minor, assigned the kanam rights in these properties under Exhibit A-3 dated 1st January, 1943. The question is as to the validity of these two gifts. Exhibit A-2 is contended to be a gift of a life estate with a vested remainder and therefore invalid and it is stated that the donees being minors could not have taken possession of the properties and no possession as such was transferred.

The question whether a Sunni Muslim in the State of Madras can create a life estate with vested remainder was referred to a Bench; but that question was 26th July 1955. not decided as it is seen from the decision in Syed Mohamed v. Kairum Bivi1, that the appeal was disposed of on an interpretation of the document, the settlement deed in that case, and it was therefore not found necessary to decide the general question that was raised in the order of reference. The same contention is raised in the present appeal. Here again, the decision of the question will depend on the construction of the document, and if as is contended by the respondent that it is a transfer of a life interest with a vested remainder, a decision of a Bench on the question would become necessary. It cannot be said that the terms of the document are so clear that such a construction is not possible. But I do not wish to express an opinion and would prefer to refer the appeal for decision by a Bench, as also the other question as to the validity of the subsequent gift.

The papers will be placed before my Lord the Chief Justice for orders as to posting before a Bench.

This Second Appeal then came on for hearing before the Bench (Govinda Menon and Ramaswami Gounder, JJ.).

M. Chinnappa Nair and A.P. Kuttisankara Menon for Appellant.

T.K. Raman Nambisan for Respondents.

The Judgment of the Court was delivered by

Govinda Menon, J.-The Order of Reference to the Bench sets out the point for decision as depending on the construction of the gift deed, Exhibit A-2 which, if interpreted as creating a life estate with a vested remainder would raise for consideration the validity of such an estate under the Muslim Law; but in our opinion a true and proper construction of the deed leads to the conclusion that no life estate is thereby created in favour of the donor Muhammad Kutti. The document after reciting the properties dealt with thereunder proceeds as follows:

“I have out of natural love and affection I have for Nos. 1 and 2 released or surrendered by assignment gift all my rights to the kanom reclamation, house and improvements thereon as per terms staled thereunder. But till my death I shall keep and enjoy the properties of the schedule without any munpattom or creating any mortgage or debt or alienating the same and it is settled that after my death Nos. 1 and 2 should keep the schedule mentioned properties and enjoy the same, with all rights of alienation and disposition paying the assessment and obtaining renewal directly from the jenmi........The above mentioned kanom deed and all other documents relating thereto have been handed over herewith”.

It is clear that the donor by the opening and operative portion divested himself by means of his gift, of whatever