The central legal point established in the judgment is the interpretation of a will creating a life estate under Mahomedan law, ultimately holding that a bequest of property to A for his life and after his death to B confers a life estate only upon A.

1. On 9th April 1888 one Nasiruddin made a will (Exhibit P-1) by which he bequeathed certain property to his wife Amirbi and certain property to his other wife Mariambi and declared that after the death of Amirbi Abdul Karim should become the owner of the property given to her and that after the death of Mariambi Abdul Kadar should become the owner of the property left to her. In other words, the will purported to create a life estate in favour of the widows with reversion to Abdul Karim and Abdul Kadar. The parties are Sunni Mahomedans governed by the Hanafi law and the lower appellate Court has held that under that law no life estates are recognized and that, therefore, the will created an absolute estate in the two widows. The plaintiff is one of the daughters of Abdul Kadar, and the defendants are Abdul Kadar's widow and other daughters. If an absolute estate was created in favour of the widows, then the plaintiff's suit for a share in the property must fail, but if Mariambi had only a life interest and on her death the property left to her became the property of Abdul Kadar or his heirs the plaintiff's suit must succeed.

2. The question how Nasiruddin's will should be construed was considered by this Court in Abdul Rahiman v. Abdul Hafiz, 1929 AIR(Nag) 313. It was there held that Mahomedan law does not recognize a life interest. The opposite view was taken by Ismay, J.C., in Gajraj Singh v. Murtaza Khan,1898 11 CPLR 150 at p. 155 to which no reference was made in Abdul Rahiman v. Abdul Hafiz, 1929 AIR(Nag) 313. Contrary views were taken by Beaumont, C.J., and Rangnekar, J., in Rasoolibibi v. Yusuf Ajam,1933 AIR(Bom) 324. Tyabji and Ameer Ali in their works on Mahomedan Law appear to support the view taken by Ismay, J.C., and the opposite view is supported by Wilson's Mahomedan Law and Mulla's Mahomedan law. I think it is desirable that this point should be settled by a Bench aud I, therefore, refer the following point for decision by a Bench : If a Sunni Mahomedan has bequeathed property to A for his life and after his death to B, does A take an absolute estate or only a life interest ?

OPINION

3. The question referred to this Bench is as follows :

If a Sunni Mahomedan has bequeathed property to A for his life and after his death to B, does A take an absolute estate or only a life interest ?

4. In Gajraj Singh v. Murtaza Khan,1898 11 CPLR 150 there was a will bequeathing a village to one Nur Bi for life and after her death to the defendant, and Ismay, J.C., at p. 155, remarked :

There appears to be no sufficient reason why a form of settlement which is recognized in all other countries and under all other systems of law should be declared invalid, and after citing a passage from Ameer Ali's Mahomedan Law to support this argument he went on to say :

To the extent then of at least one-third of the village I see no reason to question the validity of the bequest.

5. On the other hand a Bench of this Court in Abdul Rahiman v. Abdul Hafiz, 1929 AIR(Nag) 313 held, following the decisions of certain High Courts without any discussion of them or without referring to the decision in Gajraj Singh v. Murtaza Khan,1898 11 CPLR 150 that the Mahomedan law does not recognize a life interest.

6. The text-book writers are divided in opinion. At p. 27 of Mulla's Principles of Mahomedan Law, Edn. 10, the learned author quotes the well-known passage from Hedaya that an Amree or life-grant is nothing, but a gift and a condition, and the condition is invalid, but a gift is not rendered null by involving an invalid condition, and he goes on to state that if a gift is made by a Sunni Mahomedan of his property to A for life, the condition that A shall enjoy only the income of the property for life is void, and A will take an absolute interest in the property as if no condition were attached to it, and similarly that

a gift of property to A for life, and after his death to B is in its legal effect a gift to A absolutely, and B takes nothing under the