The Judgment of the Court was delivered by

Varadaraja Iyengar, J.:— This second appeal was referred to a Division Bench by one of us (Varadaraja Iyengar J.) before whom it came on in the first instance under the following order of reference:

“This case involves an important question of Mahomedan law, viz., the extent of possession necessary to be given under a gift of property subject to a reservation of the usufruct for the life time of the donor and his wife, the donee being an invalid on already resident in the property. The case is therefore referred to a Division Bench.”

2. Makkaru Mytheen whose estate is in dispute died leaving behind him as his heirs, a widow defendant 3, two sons — defendants 1 and 2, and two daughters — plaintiffs 1 and 2. He owned no other property except the property scheduled to the plaint which consisted of a composite plot of garden and wet-land measuring 2 acres and 79 cents with trees & dwelling house besides. Defendant 2 who was disabled in his limbs was living along with his parents in the property. While so on 10-6-1118 Makkaru Myhteen executed Ex. II deed of gift in respect of the plaint entire property subject to certain terms and conditions detailed therein in favour of defendant 2. Makkaru Mytheen died few months later in Karkadagom 1118.

3. Subsequently defendant 2 son, jointly with defendant 3, widow executed Ex. I sale of the property on 30-8-1119 in favour of defendant 5, a stranger. The plaintiffs, who are the daughters of Makkaru Mytheen, as abovesaid have thereafter on 15-8-1120 instituted this suit questioning the validity of Ex. II gift and Ex. I sale and praying for partition by metes and bounds of their 5/10 share in the entire property, as co-heirs, to their father, along with defendants 1 to 3.

4. The main grounds of attack against Ex. II gift taken in the plaint as originally laid was that it had been obtained by defendant 2 through fraud and misrepresentation and undue influence. These grounds are not now of any importance.

5. But we are concerned with two further grounds which the plaintiff was allowed to introduce later on by way of amendment of plaint viz., (i) that the gift amounted to the creation of a life estate and vested remainder, and (ii) that the gift was not followed by possession, both being alleged to be invalidating circumstances under Mahomedan law. The suit was contested by defendant 5 alienee. According to him the gift deed was in no way invalid and the suit was totally misconceived.

6. The trial Court allowed the suit and granted a preliminary decree in favour of the plaintiffs for partition of their 5-18 share. The learned Additional District Judge in appeal by defendant 5 has dismissed the suit and hence this second appeal by the plaintiffs.

7. Before discussing the questions of law raised on the appeal it will be useful to have a clear idea of the transaction of gift in question. For this we have to practically confine ourselves to the deed of gift Ex. II for the oral evidence consisting of plaintiff 1 and defendant 5 examined as P.W 1 and D.W 1 respectively cannot be much useful in the matter.

8. Exhibit II begins by saying that the donee is disabled in the use of his limbs and therefore the property is being gifted to him on account of love and affection and the donee will take it subject to the conditions detailed and effect mutation and enjoy the property. Exhibit II then proceeds to specify the conditions and they are that the parents of the donee who were residing along with him in the house in the property will continue to reside and mutually protect each other as before and further, the donor and after his life time his wife viz., the mother of the donee will have the right to take all the usufruct for themselves either directly or through others.

9. Exhibit II finally wound up by saying that if it was necessary to raise any loan upon the property that should be done only jointly by the donor and the donee and after the life time of the donor the donee was to take the property with absolute rights and enjoy the same accordingly. It should be added that the gift deed was presented for registration by defendant 2 and got back by him from the registration office. But what became of the original deed we do not know for Ex. II produced by defendant 5 is only a certified copy and defendant 5 as D.W 1, has no explanation in the matter.

10. Learned counsel for the plaintiffs appellants urged his first ground of invalidity of Ex. II gift by saying that there was under Ex. II a reservation of a ‘life estate’ in the donor and his wife and a gift only of a ‘vested remainder’ in favour of defendant 2 and relied on the early cases in Humeeda v. Budlum, 17 WR 525 (PC)(A), and Abdul Gafur v. Nizamuddin, 17 Bom 1 (PC)(B) decided by the Privy Council “that a life estate does not seem to be consistent with Mahomedan usage and there ought to be very clear proof of so unusual a transaction” and also on Abdul Wahid v. Nurain Bibi, 11 Cal 597 (PC)(C) also a decision of the Privy Council “that such an interest as a vested remainder did not seem to be recognised by Mahomedan law.”

11. But the position on this subject has, however, been made clear by the latest decision of the Privy Council in Nawazish Ali Khan v. Ali Raza Khan, AIR 1948 PC 134 (D). Referring to the expressions ‘life estate’ and ‘vested remainder’ their Lordships stated as follows:

“In their Lordships opinion this view of the matter introduces into Muslim law legal terms and conceptions of ownership, familiar enough in English law, but wholly alien to Muslim law. In general, Muslim law draws no distinction between real and personal property, and their Lordships know of no authoritative work on Muslim law, whether the Hedaya, or Baillie or more modern works, and no decision of this Board which affirms that Muslim law recognises the splitting up of ownership of land into estates, distinguished in point of quality like legal and equitable estates, or in point of duration like estates in fee simple, in tail, for life, or in remainder.

12. What Muslim law does recognize and insist upon is the distinction between the corpus of the property itself (ayn) and the usufruct in the property (manafi). Over the corpus of property the law recognizes only absolute dominion, heritable, and unrestricted in point of time; and where a gift of the corpus seeks to impose a condition inconsistent with such absolute dominion the condition is rejected as repugnant; but interests limited in point of time can be created in the usufruct of the property, and the dominion over the corpus takes effect subject to any such limited interests.”

13. Their Lordships added:

‘The first duty of the Court is to construe the gift. If it is a gift of corpus, then any condition which derogates from absolute dominion over the subject of the gift will be rejected as repugnant; but if upon construction the gift is held to be one of a limited interest the gift can take effect out of the usufruct leaving the ownership of the corpus unaffected except to the extent to which its enjoyment is postponed for the duration of the limited interest.”

14. It follows therefore that while in the case of a gift of the corpus, no conditions can be imposed, rights in respect of the usufruct may be granted for a limited period or for the life-time of a grantee. The right to take the usufruct is directly connected with the notion of time or duration. If it is found on construction of a deed of gift that it is a transfer only of limited interest in the usufruct, the ownership of the corpus will not be affected and would be valid as that.

15. Construing the gift Ex. II here we find that the donor without retaining any dominion over the corpus has added only a condition that the whole of the usufruct would be in his use for his life time and thereafter to his wife for her life time.

16. Such conditions as seen above would be perfectly valid. See also Nawab Umjad Ally v. Mohumdee Begam, 11 Moo Ind App 517 (PC)(E) where a transfer of Government promissory notes to a son subject to the payment of the recurring income to the donor during his life time was held to be nol in any way invalid, and Md. Abdul Ghani v. Mt. Fakhr Jahan, AIR 1922 PC 281 (F), where a deed which was intended to operate as an immediate and irrevocable disposition of all the donor's property subject to the reservation for her own use during her life time of the usufruct of the property was construed as a gift valid under Mahomedan Law.

17. The second and more important question is as to the defect in the gift in the matter of delivery of possession. In order that there may be a valid gift or Hiba, under Mahomedan law, three conditions have to be fulfilled. There must be (i) a declaration of gift by the donor, (ii) an acceptance of the gift, expressly or impliedly, by or on behalf of the donee, and (iii) delivery of such possession of the subject of the gift by the donor to the donee, as it is capable of.

18. The mere registration of the deed of gift and the handing over of the gift deed to the donee would be insufficient and will not cure the want of delivery of possession. No doubt the Mahomedan law does not require any particular mode of delivery of possession but it insists upon what would amount to be a complete delivery of seisin. The question here is what exactly has to be done for the purpose of giving delivery where the donee, is in residence in the property along with the donor. Mulla states the proposition a follows:

“No physical departure or formal entry is necessary in the case of a gift of immovable property in which the donor and the donee are both residing at the time of the gift. In such a case the gift ??? be completed by some overt act by the donor indicating a clear intention on his part to transfer possession and to divest himself of all control over the subject of the gift. The principle for the determination of questions of this nature was thus stated be West, J., in a Bombay case.

“When a person is present on the premises proposed to be delivered to him, a declaration of the person previously possessed puts him into possession ……without any physical departure or formal entry”. (See page 142, Article 152(3) 1955 edition).”

19. The learned author appends Humera Bibi v. Najm-unnissa Bibi, 28 All 147 (G), Abdul Razak v. Zainab Bi, AIR 1933 Mad 86 (H) and Baldeo Prasad Balgovind v. Shubbratan, 1936 All LJ 590 (I), as in stances where the gift was held to be complete an Qamar-ud-din v. Mt. Hassan Jan, AIR 1935 Lah 79 (J) and Mt. Hajra v. Dost Mohammad, AIR 1947 All 180 (K), as illustrations where the gift was held to be invalid.

20. The important element which shifted the scale in these cases was the presence or absence in the respective case of an indication of a clear intention on the donor's part to transfer possession. Thus in 28 All 147 (G), the property was transferred in the name of the nephew, donee and the rents were re covered in his name.

21. In AIR 1933 Mad 86 (H), the deed of gift re cited that possession was given to the son, donee an he paid the municipal taxes after the execution of the deed. On the other side in AIR 1935 Lah 795 (J), the deed contained no recital that possession was given it was not given to the donee and the donor paid municipal taxes after execution of the deed.

22. Reference may also be made in this connection to the case in Veevi Umal v. Muhammathu Ummal, 33 Trav LJ 132 (L) which was a case of a gift by husband to wife. Sankarasubba Iyer J., after an exhaustive review of almost all the decisions till then available on the subject summarised the position as follows:

“Neither physical departure on the part of the donor nor formal entry on the part of the donee can be insisted. Nevertheless it is necessary that either the donor must have made a declaration that possession was being given by him to his wife of the property gifted or there must be a statement that the donee has accepted the gift and taken possession of the gift property.”

23. In that case the subject matter of the gift was one-half of a garden land susceptible of actual delivery. There was no statement that the donor had transferred possession of the moiety to the donee. All that was said was that the donor has given a gift, the donee was to enjoy the same and effect mutation in the revenue records.

24. It was held that there was no overt act on the part of the donor to divest himself of all control over the subject of the gift and to transfer possession to the wife and the gift was not therefore effectual. One of the cases referred in the 33 Trav LJ case (L) just cited, was that of Kadarbhai v. Nanibibi, AIR 1926 Bom 559 (M), where the facts were almost ??? to those in this case. The gift there was by Mahomedan to his wife. The deed of gift provided the end as follows:

“My right to live in the property till life has been served and you are to take possession of the said property alter my death.”

25. It was held that there was no evidence to show at actual or constructive possession of the property as given to the donee and hence the deed of gift as null and void.

26. There is also the recent case of Annamalai v. ??? Bibi, AIR 1955 Mad 600 (N), where a Mahomedan executed a deed of gift in respect of a house ??? favour of his wife with a condition that she should by with him and render him service till he died and she failed to do so the gift shall not be valid. The ??? deed was handed over not to the wife but to third party who produced it in Court but was not ??? in the case to show how he came into possession of it.

27. There was no registry of the transfer in favour of the wife in the municipal records and the rents the house were used to be sent to the donor at Rangoon where both the donor and donee were ??? Mack J. held that it could not be said that delivery of possession was given to the wife so as make it a completed and valid gift.

28. It follows therefore that the question in every ??? is whether the donor intended to transfer the ??? at the time of the gift and this must be ??? with reference to the facts of each ??? case. Applying then the test adopted in the ??? cases, is it established here that the donor ??? the donee to take possession of the property during his life time?

29. There is no declaration that possession is being ??? to the donee or that he has taken possession, he fair inference on the whole seems to be that the donee was not to take possession of the property in ??? life time of the donor and that inference is supported by the reservation of the right to live in the take the usufruct of the property by the donor ??? his wife for their life time. There is also no ??? evidence to explain the surrounding circumstance to show whether possession of the property was or in fact given.

30. The mere assertion of defendant 5 as D.W I ??? delivery of possession was made at date of gift not of any consequence for he was not competent ??? of his own knowledge to make such statement, or can the fact that he obtained possession under his ??? Ex. I be of any help in the present matter and ??? onus in every case is on the donee or those who aim under him to prove that possession was given, ??? Khajooroonissa v. Rowshan Jehan, 2 Cal 184 (PC)(O). The onus, in our judgment, has not been ??? in this case. We accordingly hold that the deed of gift Ex. II is bad under Mahomedan law and that the plaintiffs' suit ought to succeed. We therefore allow the second appeal and restore the decree the trial court. The appellants-plaintiffs will get ??? costs of this Court and the Court below from ??? special respondent — Defendant

31. Appeal allowed.