Gift in favour of unborn person not valid.

This is a second appeal filed by the plaintiff Fathimuthu in O.S.No.116 of 1976, on the file of the learned District Munsif, Chidambaram against the judgment and decree dated 20.8.1979 in A.S.No.100 of 1978, on the file of the Court of the learned Subordinate Judge, Chidambaram, dismissing the appeal with costs of the contesting respondents and confirming the judgment and decree of the trial court.

2. The suit was filed for partition and separate possession of plaintiff’s half share in the suit properties, for future mesne profits and for costs.

3. The case of the plaintiff in brief is as follows: One G.M.Ghouse and his wife originally owned the suit properties and other properties and they had executed a Hiba on 19.3.1931 in favour of their grand children by name Aliaudeen, Fathima Bivi, K.Shafia Bivi, Kathija Bivi and K.Ameena Bivi who were minors then. The guardian of the donees took possession of the properties and the gift deed was acted upon. Under the said gift deed, the donees were given only the right to enjoy the income from the properties and they were not given any power of alienation. As per the terms contained in the hiba, the grand children of G.M.Ghouse have to enjoy the properties absolutely. The donees mentioned in the hiba effected a partition among themselves regarding the gift properties and in the said partition Shafia Bivi, who is the 6th defendant in the suit, was allotted the properties described in the Schedule-C. The said Shafia Bivi has got a son who is the 1st defendant in the suit, and a daughter who is the plaintiff in the suit. The plaintiff and her brother are entitled to half share in the properties which are given to the 6th defendant under the gift deed. Contrary to the terms of the hiba, and the subsequent arrangements between the donees, the 6th defendant had sold almost all the properties in favour of the defendants 2 to’ 5. The 6th defendant has got no right to alienate the properties and therefore the alienation by the 6th defendant would not bind the plaintiff and the 1st defendant. The 1st defendant has parted with his interest. Under these circumstances, the plaintiff has come forward with the suit for partition, separate possession and mesne profits, regarding her share in the properties.

4. In the trial court, the defendants 1 and 6 have remained ex parte.

5. Defendants 2,3 and 5 filed a written statement adopted by defendants 7 and 8, to the following effect: The hiba dated 19.3.1931 is not a valid document in law. The plaintiff has got no title over the suit properties. The suit is bad for partial partition. In the partition which took place between the heirs of G.M.Ghouse Sahib, the 6th defendant was allotted the properties described in the C schedule therein. The 6th defendant was enjoying her share as an absolute owner, and she had disposed suit item to the defendants 2 to 5 who are bona fide purchasers for value. The 5th defendant is an unnecessary party to the suit. The plaintiff’s suit is barred by limitation. Hence the suit may be dismissed.

6. The 4th defendant filed a written statement stating that the settlement deed in favour of the 6th defendant and others by G.M.Ghouse and his wife is not a valid one under Mahomedan Law, that the parties were not given possession of the properties in pursuance of the said hiba, and that Mahomedan Law does not recognise vested estates in remainder. The alienation made by the 6th defendant is valid. Hence the suit may be dismissed.

7. The trial Court had framed the following issues and additional issues for trial:

1. Whether the alleged hiba dated 19.3.1931 is true, valid, accepted and acted upon?

2. Whether the plaintiff has got title to the suit properties?

3. Whether the suit is bad for partial partition?

4. Whether the plaintiff has got any right over the suit property during the lifetime of the 6th defendant?

5. Whether the 5th defendant is an unnecessary party to suit?

6. Whether the suit is maintainable as it is framed?