Settlement deeds executed during the donor's lifetime, fulfilling Muslim Law requirements, are effective transfers of ownership and cannot be treated as wills.

J U D G M E N T

A.Muhamed Mustaque, J.

In these appeals, we are called upon to decide its fate on an interpretation of two documents styled as settlement deeds executed by late Salma Sulaiman in favour of Dr.Sudheer Sulaiman, her son. The appellant-Susheel Sulaiman in both the appeals is the other son of Salma Sulaiman.

2. On the death of Salma Sulaiman, Susheel Sulaiman filed a suit for partition of plaint 'A' Schedule and 'B' Schedule properties. This suit was numbered as O.S.No.126/2015 of Sub Court, Ernakulam. Earlier, Salma Sulaiman and Dr.Sudheer Sulaiman had filed a suit as O.S. 974/2012 before the same Court for recovery of possession of plaint 'A' and 'B' schedule properties referred in O.S.No.126/2015. The suit by Susheel Sulaiman for partition was dismissed and the other suit filed by Salma Sulaiman and Dr.Sudheer Sulaiman was decreed. It is challenging these decree and judgment, Susheel Sulaiman has come up in appeal.

3. According to Susheel Sulaiman, their father purchased the property in the name of their mother Salma Sulaiman. It is his case that, the title to 'A' and 'B' schedule properties claimed by Dr.Sudheer Sulaiman based on the two settlement deeds have no consequence in as much as that the settlement deeds are in the nature of a Will.

4. Under Muslim Law, a Will cannot be executed in favour of one of the legal heirs, except with the consent of the other legal heirs. Here, if the deeds are accepted as settlement deeds, the decree and judgment of the court below will have to be affirmed.

5. Ext.A1 is the deed in respect of plaint 'A' schedule property. Ext.A2 is the deed in respect of plaint 'B' schedule property. Now let us look at Ext.A1. Certain stipulations in Ext.A1 have raised a confusion. The deed is a gift deed, styled as a settlement deed. It is specifically stipulated in the said deed that, in consideration of love and affection to the settlee, subject to reservation to reside and manage the property, the settlor, settled the scheduled property in favour of the settlee. However, it is seen that the settlor, namely, Salma Sulaiman has the right of life interest reserved in her favour. It is also stipulated that Dr.Sudheer Sulaiman will become the absolute owner of the property subject to reverse mortgage, if any, and further stipulated that Dr.Sudheer Sulaiman will take over absolute possession and ownership after the life time of the settlor and enjoy the same without any let and interest subject to discharge of liability, if any, based on the reverse mortgage. There is no case that property was outstanding in mortgage.

The question is whether the document is a gift or a Will. The learned counsel for the appellant argued that since interest of the settlor will take place only after death, the document is a Will and cannot be treated as a gift deed. Whether a document is a Will or a gift deed has to be ascertained by reading it as a whole. It is true that the recitals in the document are misleading. There also cannot be any dispute that reserving life interest, a gift can be executed. The essentials of a valid gift under Mohamedan Law are viz., (i). a declaration of gift by donor; (ii). an acceptance of the gift, express or implied, by or on behalf of the donee; (iii). delivery of possession. {See page 118 Mulla's principles of Mahomedan Law, 19th Edn. by M.Hidayatullah and Arshad Hidayatullah}. In this case, the first part of the above essentials of valid gift is seen from the recital – 'a declaration'. The second and third parts are also seen, as Dr.Sudheer Sulaiman has effected transfer of registry and mutation before the local authority and the revenue authority. This is also seen from the suit filed by Salma Sulaiman along with Dr.Sudheer Sulaiman against Susheel Sulaiman for recovery of possession. What makes the difference between a gift and a Will is the transfer of ownership. If the ownership has been transferred absolutely during the life time, then the document would be a gift and not a Wi