Life estate and gift over.

This is an appeal under the Letters Patent against the judgment of Rajagopalan J. with his leave dismissing second appeal No. 1958 of 1946.

It arises out of a suit for partition of property which originally belonged to one Hussain Meera, a sunni Mahomedan. On 9th November, 1914 he executed a deed of settlement (Exhibit P-1) in favour of his second wife Nainammal Bibi. The occasion was his proposed marriage to a third wife. The decision of this appeal depends on a construction of the terms of this settlement deed. The material: portions of this deed are as follows:

“I have settled upon you for your maintenance the undermentioned nanja land worth Rs. 2,000. Therefore this is a settlement deed executed (by me) consenting that you should enjoy for your life time the income alone for the said nanja land, that you should not make any gift, sale or hypothecation, etc. of the said land, that if you should hereafter have issue by me, the said issue should enjoy the said land hereditarily, and that if you should not have such issue that said property after your lifetime go to me and to my heirs”. (Santhathi)

Hussain Meera died in 1925. He had no issue by Nainammal, his second wife. But by his third wife he had a daughter Amir Bibi who survived him. Nainammal died on 26th January, 1942. On that date it is common ground that the only surviving heirs of Hussain Meera were his mother and his sister, the second defendant in the suit and the appellant before us. She obtained an assigment of her mother’s interest and she claims the property in her right and in the right of her mother as the only heirs of Hussain Meera in 1943. Nainammal before her death had executed on 16th March, 1940 a deed of gift of the suit property in favour of the first defendant. The validity of this gift was challenged in a prior suit which came up to this court in second appeal and it was finally decided therein that that deed was invalid as Nainammal tooK only a life estate in the property.

On the death of Nainammal, one of the heirs of Amir Bibi (who had died in 1931) instituted the present suit for partition. His claim originally was on the footing that Amir Bibi got the entire estate on the death of Nainammal as the only one of the “santati” of Hussain Meera alive on the death-of Nainammal.

This position however was subsequently abandoned and the plaintiff was content to claim on the footing that Amir Bibi was one of the heirs of Hussain Meera when he died in 1925. The main contesting defendant was the second, the appellant before us, who, as already mentioned, claims that the succession opened really in 1942 when Nainammal died and on that date the only two surviving heirs of Hussain Meera were his mother and herself.

Rajagopalan, J. held on a construction of Exhibit P-1 that Hussain Meera by that document conferred on Nainammal only a life interest in the income of the suit property. It followed from this finding that the right to the corpus continued to remain with Hussain Meera and on his death his heirs would be entitled to the property, though, so far as the enjoyment of the income therefrom was concerned, it would be postpond till the death of Nainammal. He came to this conclusion mainly on the latest and most authoritative pronouncement of the Judicial Committee in Nawaziah Ali Khan v. Ali Raza Khan1. It is unnecessary to refer at length to the effect of this decision as the entire law on this subject has been set out fully in the 13th edition of Mullas’ Muhammadan Law at pages 46 to 50. It suffices to give the following extract from the judgment of their Lordships:

“Their Lordships felt no doubt that in dealing with a gift under Muslim Law the first duty of the Court is to construe the gift. If it is a gift of the corpus, then any condition which derogates. from absolute dominion over the subject of the gift will be rejected as repugnant; but if on construction the gift is held to be one of a limited interest the gift can take effect but out of