A gift with a reservation of possession by the donor during his or her lifetime is invalid under Muslim law.

K.S. Palaniswamy, J.

1. This petition, filed under Section 74 of the Indian Trusts Act,. (II of 1882), raises an interesting but complicated question of Mahomedan Law. The relevant facts are these. The first petitioner is the mother of the second petitioner and is the daughter of the first respondent and late M. Abdul Basith Sahib. Respondents 2 and 3 are the sister's children of the first respondent. The site upon which the petition-scheduled building stands originally belonged to the first respondent. The susperstructure belonged to Abdul Basith. On 15th February, 1951, Abdul Basith executed a settlement over the petitioner-scheduled property in favour of the first petitioner without reference to the first respondent, his wife. On 25th October, 1956, Abdul Basith revoked that settlement with the consent of the first petitioner. On 27th July, 1959, Abdul Basith and the first respondent jointly executed a document, which is marked as Exhibit P-1 in this case, styled as settlement deed, constituting themselves as trustees for the. purpose of carrying out the terms of the trust and providing for the management of the property after their lifetime. The point in controversy is about the validity of this transaction and its scope and effect.

2. The contention of the petitioners is that under the trust deed the donors did not retain for themselves any interest in the property and were bound to utilise the income from the property to discharge the debt due to Kodambakkam Co-operative Building Society, to repair the buildings, to pay the tax and also to maintain the first petitioner and to educate the second petitioner and that after the death of Abdul Basith the first respondent acted in violation of the trust deed. They allege that the first respondent did not pay the interest due to the Society and did not pay anything to the first petitioner for her maintenance or for the education of the second petitioner, that the first respondent deprived the petitioners of a considerable portion of the property in their occupation and had allowed respondents 2 and 3 to occupy a considerable portion and that, therefore, the first respondent is liable to be removed.

3. The respondents contend that the alleged trust itself is void under the Muslim law. They also contend that under the terms of the trust deed, the first respondent is entitled to enjoy the entire income during her lifetime without any liability to pay anything to the petitioners and that even if the trust is valid, the petitioners would be entitled to the beneficial interest only after her lifetime.

4. The first question that arises for consideration is whether the gift, made through the medium of the trust deed Exhibit P-1, is valid. The second question is whether the first respondent is guilty of breach of trust in that she had not paid anything to the petitioners out of the income of the gifted property. As regards the validity of the trust, the respondents put their contention on two grounds. Firstly, it is said that the gift is void inasmuch as it has been created not only in favour of the petitioners but also in favour of the future children to be born to the first petitioner. Secondly, it is contended that under the terms of the trust deed, there was no effective transfer of possession or transfer of beneficial interest in the property in favour of the donees, and as such, the gift is void. Exhibit P-1 inter alia provides that the donees are not only the present petitioners but also children to be born to the first petitioner. Thus the gift is in favour of living persons and unborn persons. A gift to a person, who is not yet in existence, is void. Vide Section 141 of the Principles of Mahomedan Law by Mullah, 16th edition. There is no controversy about this position. The only question is whether the gift is void in toto even to the extent of the interest of the donees in existence or whether it is void only to the extent of the interest created in favour of unborn person