1. The facts necessary for the decision of this second appeal may very briefly be stated. Vavuthan Ravuthar, a Muhammadan, had two wives. The plaintiffs are his sons by his junior wife. By his senior wife, he had a son, named Nagoor Meeranna, who died in 1906. The plaintiffs' suit is to recover their share by inheritance in the property of Nagoor Meeranna. They put forward two instruments; one of them was a deed of gift, under which item No. 1 of the plaint properties was claimed as belonging to Nagoor Meeranna, executed by his maternal grand-mother, and the other a deed of settlement executed by Vavuthan in favour of his senior wife, the 1st defendant and her son Nagoor Meeranna. The defendants contended that possession was not given under the deed of gift, that it was, therefore, invalid and that the property, therefore, did not belong to Nagoor Meeranna This plea has been found against by both the lower Courts, and, as there is no legal objection to that finding, we must accept it in second appeal.
2. With regard to items Nos. 2 and 3 included in the deed of settlement, the plea was that they belonged to the 1st defendant, Ismail Meeranna Ammal herself, although the document under which they were purchased was in the name of her husband and that, even if they belonged to the latter, the property belonged to herself under the settlement deed. The lower Courts have found that the items did not belong to the 1st defendant but to Vavuthan, the executant of the deed of settlement. The only question we have to deal with in second appeal relates to the rights created by Exhibit D. The substantial portion of the settlement deed is in these terms: "As I have given you with perfect willingness the under-mentioned immoveable property worth Rs. 1,800 for the mahar and share, according to Muhammadan Law, of Ismail Ammal, one of us, and for the share of Nagoor Miran Rowthan and as I have made you entitled thereto by means of this settlement deed, providing that Ismail Ammal, one of you, shall enjoy it during her life-time and that afterwards, Nagoor Miran Rowthan, shall enjoy it from generation to generation and that you two shall have no claim whatsoever to the other immoveable and moveable properties that are in my possession, you shall enjoy it according to the terms mentioned above," The 1st defendant's contention is that, according to Muhammadan Law, the gift in favour of Nagoor Meeranna was invalid as it was of an estate in remainder and that the life-estate in her own favour would operate as an absolute conveyance. The District Munsif was apparently of opinion that her contention was sound. But, after coming to that conclusion, he observed that supposing both the life estate in favour of the 1st defendant and the vested remainder in favour of her son are both void, the document must be treated to have conferred an absolute right on both" relying on the words "I give the property to you both." He held that the instrument must be treated, not as a simple gift or hiba, but as a sale as it was made in consideration of the rights of mahar and inheritance of the donees; and that the 1st defendant and her son took as tenants-in-common absolutely and the plaintiffs would be entitled to their share of Nagoor Meeranna's half share.
3. On appeal, the District Judge held that Exhibit D must be treated as a sale and that, although the release by Nagoor Meeranna of his right of inheritance to the remainder of Vavuthan's properties could not be construed as a valid consideration, the dower due to Ismail Ammal was sufficient consideration in law for the conveyance both to her and to her son.
4. In second appeal, it is contended that this view is wrong and that the gift to Nagoor Meeranna being of an interest in futuro was invalid under the Muhammadan Law as, according to it, delivery of possession is essential to a gift and that the transaction could not be regarded as a sale in favour of both Ismail Ammal and Nagoor Meeranna. We are of opinion that this contention must prevail. There can be no doubt that the conveyance under Exhibit D was of a life-estate to Ismail Ammal and of the remainder to Nagoor Meeranna. It was suggested that what was conveyed to Ismail Ammal was only the usufruct of the items during her life. But, after perusing the original document, we are unable to accept this argument. The words of Exhibit D clearly are that Ismail Ammal should enjoy the property itself during her life-time and Nagoor Meeranna should have an absolute estate after her death. The ownership is not vested in Nagoor Meeranna during the life time of Ismail Ammal. Nor are we able to construe the document as conveying both the life-estate and the remainder to both the grantees for a single consideration following from both. The life-estate is granted to Ismail Ammal in consideration of the mahar and share due to her according to Muhammadan Law and the remainder is granted to Nagoor Meeranna in consideration of the share due to him and the release of his right to a share in the other properties belonging to the donor. The conveyance of a remainder interest or interest in futuro has been frequently held to be invalid according to Muhammadan Law. Where a life-estate is given with remainder to another person the donee of the life-estate takes the property absolutely. See Casam Ally Jairajbhoy Peerbhoy v. Sir Currimbhoy Ebrahim 13 Bom. L.R. 717; 12 Ind. Cas. 225; 36 B. 214; Mahomed Ebrahim Haji Gulam v. Abdul Latif Haji Mahmod 14 Bom. L.R. 987 at p. 1003; 17 Ind. Cas. 689 where the question is fully discussed by Beaman, J., Abdul Karim Khan v. Abdul Qayum Khan 28 A. 342; A.W.N. (1906) 25; 3 A.L.J. 131; Mahomed Shah v. Official Trustee of Bengal 36 C. 431; 2 Ind. Cas. 292 Abdul Gafur v. Nizamudin 17 B. 1 (P.C.); 19 I.A. 170 and Musammat Humeeda v. Musammat Bualun and Government 17 W.R. 525 (P.C.). Banoo Begam v. Mir Abed Ali 32 B. 172; 9 Bom. L.R. 1152 has been cited on behalf of the respondent. But, that case was one under the Shia law in which life-estates are recognized. We must hold that, if the conveyance, so far as Nagoor Meeranna was concerned, was a gift and not a sale, it must be held to be invalid. It is contended that it must be regarded as a sale as the grant was in consideration of his releasing his right to inheritance in the property of Vavuthan. The decision of Chandavarkar, J., in Shamsudin v. Abdul Husein 8 Bom. L.R. 252 is in support of this contention. The learned Judge upheld a gift in consideration of the release by the donee of a right to a share in the property of the donor which would descend to her on his death on the ground that the transaction was in the nature of a family arrangement by which the father made immediate provision for his daughter, to take effect both in his life-time and after his death, and to which the daughter consented in consideration of the present benefits received and the future benefits to be received by her." The decision of the learned Judge, however, was reversed on appeal by Jenkins, C.J., and, Beaman, J., in Shumsudin Ghulam Hossein v. Abdul Hoosein Kalimoodin 8 Bom. L.R. 781. We agree with the decision of the Court of Appeal. The right to inherit to a person is not property which can be transferred either according to the Muhammadan Law or according to the general principles of law as recognised in Section 6 of the Transfer of Property Act. We also agree in the view that it cannot be the subject of a valid release for the same reason, and could not, therefore, form a consideration which would, in law, justify our treating the conveyance in favour of Nagoor Meeranna as a sale. It is not contended that the release of such a right is treated as consideration by the Muhammadan Law. As pointed out in Shumsuddin Ghulam Hoosein v. Abdul Hoosein Khan 8 Bom. L.R. 781 the opinion of the majority of the Muhammadan Law officers in Musamant Khanum Jan v. Musammat Jan Beebee 4 S.D.A. 210 was to the contrary. See also Abdul Walid Khan v. Musammat Nuran Bibi 12 I.A. 91 at p. 101; 11 C. 597.
5. We are unable to see how the case could be strengthened by speaking of the conveyance as a family settlement. That could not affect the question whether the release of a right of inheritance could be regarded as legal consideration. The conveyance in Exhibit D to Nagoor Meeranna must, therefore, be treated as invalid, and the 1st defendant's contention that she took an absolute estate must be upheld. The suit with respect to items Nos. 2 and 3 must be dismissed. We reverse the decree of the lower Appellate Court and restore that of the District Munsif with proportionate costs for both sides here and in the lower Appellate Court.
6. The memorandum of objections is dismissed with costs.
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