P L D 1956 Dacca 143 (PLP)

GUHA, J.‑This second appeal by the defendants Nos. 1 to 8 against the decision of the learned District Judge of Rajshahi affirming the decision of the learned Munsiff of Naogaon raises a short question whether the 4 plaintiffs can claim title to an undivided two‑thirds share of the suit land and get a decree for joint possession therein on the basis of a gift granted to their step mother for her life by their father Kader Gazi. The deed of gift is Exh. A in the case and is dated the 2nd Kartic 1351 B. S., corresponding to the 19th October, 1944. The only contention is that the Courts below have wrongly construed that document and on a proper construction of the same and the law on the subject the Courts below should have held that there could not be a valid gift under the Muhammadan Law granting a life interest to the donee. The admitted facts are that the suit land originally belonged to one Kader Gazi, who died in Agrahayan, 1351 B. S. (November‑December, 1944). Kader Gazi had no son. The plaintiffs are his four daughters by the first wife, and Mirjan Bibi was his second wife. On the 2nd Kartic, 1351 B. S., corresponding to the 19th October 1944. Kader Gazi executed a deed of gift in favour of Mirjan Bibi with respect to the disputed land on condition that she would enjoy the gifted property for her life, but on her death the disputed property would either revert to Kader Gazi or to his heirs. Mirjan Bibi enjoyed the said property till her death in Jaistha 1354 B. S. (May‑June, 1947). The .4 plaintiffs, daughters of Kader Gazi by the first wife, now claim the disputed property to the extent of two‑thirds share on tile basis of the terms of the deed of gift (Ext. A) by this suit and want to get joint possession therein. The principal defendants Nos. 1‑8, appellants in this Court, are the heirs of Mirjan Bibi, and they contest the claim of the plaintiffs on the ground that under the Muhammadan Law a gift with a condition is void and so Mirjan Bibi acquired ,an absolute interest in the disputed property and as such the plaintiffs cannot claim any title or interest therein. The trial Court as well as the lower appellate Court did not accept the defence contention and passed a decree in favour of the plaintiffs declaring that they had title to two‑thirds share of the disputed property and that they would get joint possession therein. Both the Courts below held that Mirjan Bibi did not acquire an absolute interest in the suit property but only a life interest under the gift (Exh. A). In this appeal by the defendants Nos. 1‑8 the propriety of the decisions of the Courts below is challenged. The only question is whether Mirjan Bibi took an absolute estate in the suit property under the gift (Exh. A) or only a life interest. The parties here are Sunni Muhammadans. Mr. Modaris Ali for the appellants argues that the gift to Mirjan Bibi was made subject to a condition which derogated from the completeness of the grant and so the condition was void and that the gift would take effect as if no condition was attached to ‑it. In other words, Mr. Modaris Ali urges that according to Muhammadan Law, the gift is to be upheld but the condition discarded. The gift was of the land and the condition was that she would hold the land for her life and after her death it would pass not to her heirs but to the donor or his heirs. According to Mr. Modaris Ali this condition is void, and if it is discarded or left out of account, then, only an unquali fied gift would remain; therefore though the gift purported to convey a life estate only, the effect in law would be that the estate 'conveyed would be enlarged and as absolute estate would pass. The Court of appeal below held on a construc tion of the terms of the gift (Exh. A) that Kader Gazi never intended that Mirjan should get an absolute interest in the gifted property, but evidently a life interest was created in her favour and that a condition was attached to the effect that after the death of the donee, it would revert to the donor or his heirs, so the condition attached to the gift could not be discarded and under the Muhammadan Law, a life interest could be created by gift, under the circumstances appearing in this case; so the gift was effective and valid only for the period of life of the donee, and the plaintiffs were entitled to the property as claimed. The decision of the lower Appellate Court was to the effect that assuming that by the deed of gift Kader granted a life estate only, the law could not enjoin that it would operate as anything more. I shall presently show from the terms of the deed of gift (Exh. A) that what was granted to Mirjan was not strictly a life‑estate at all, but only the usufructs of the gifted property for the period of her life for her maintenance and there was nothing under the Muhammadan Law which debarred a Sunni Muhammadan to grant a life estate in the usufruct of the property gifted to a donee; and in that view also the decision of the lower Appellate Court can be supported that the gift in question did not contravene any doctrine of Muhammadan Law. It will be convenient to set out at this stage the provisions of the gift (Exh. A), which is in the Bengali language and a faithful translation of its material terms is as follows: "This deed of Arpannama is executed to the effect: You are my second wife and you have been living in my family since your marriage. You have no issue of your womb. There is no one in my family, who is competent to give you maintenance. Morally (the Bengali word is Dharmata which literally means under the dictates of religion) I am under a bounden duty to maintain you: Lest you find any difficulty in future in having your food and clothings, I, as in duty bound and for that purpose, make a gift of the property described in the schedule below to you on this condition that so long you shall live you will enjoy and possess the usufructs, produce benefits, etc., arising there- from, and after your death the said property shall revert back to me or to my heirs or legal representatives. During your life time neither I nor my heirs nor legal representa tives shall advance any claim thereto and even if that be done the same shall be rejected in all Courts. From this day you will take possession of that property and continue to possess the same for your life on getting your name mutated in the Zamindar's office and on duly paying rent of the same. The approximate value of the gifted property is Rs.

800. To this effect .I execute this Arpannama in sound mind and being actuated by only sense of my duty. Finis. Dated the 2nd Kartic 1351 B.S., correspond ing to the 19th October 1944." Under the Muhammadan Law a gift which is subject to a condition and which derogates from the completeness off the grant, the condition becomes void and the gift takes effect as if no condition has been attached to it: Baillie, 2nd. Edition, at page 546 states, "All our masters are agreed that, one has made a‑gift and stipulated for a condition that is aside or invalid; the gift is valid and the condition void." Again. Baillie at 'page 517 states: "So also if he had said, This mansion is to ‑thee omree (for thy age‑oomr), or hyatee (for thy life hyat), and when thou art dead it 'reverts me'; in which case the gift is lawful, and the condition is void." In Hamilton's Hedaya at page 489, we find the following passage: "An Amree, or life‑grant is lawful to the grantee during his life, and descends to his heirs, because of the tradition before quoted. Besides; the meaning of Amree is a gift of .a house during the life of the donee, on condition of its being returned upon his death. The conveyance of the house, therefore, is valid without any return and the con dition annexed is null, because the Prophet has sanctioned the gift, in this instance, and annulled the condition, as before mentioned. An Amree, moreover, is nothing but a gift and a condition; and the condition is invalid ; but a gift is not rendered null by an involving condition as has been already demonstrated." The principle on which the appellants rely is that when it is clear that the intention of the donor is to make a gift to the donee of the corpus of the property comprised in the gift, and there is a condition attached that the donee a should take a limited interest or should take a life estate only, under the Hanafi law the condition would be void and there would be an absolute gift of the property. In other words, it is argued that if a gift of tangible property is made subject to a condition inconsistent with absolute ownership on the part of the donee of the thing gifted, the gift is valid, but the condition is void. Vide Wilson's Anglo‑Muhammadan Law, 5th Edition, para 313, page

331. It is true that it is the legal effect of such a deed of gift But it is equally correct on principle and authority that if, the gift is not of an absolute interest with a condition of defeasance but of a limited interest only, it will be valid That is the effect of the decision of the Judicial Committee of the Privy Council in Amjad Khan v. Ashraf Khan (1929LR561 A213‑33CWN752PC), where it has been laid down that a gift of a life estate is valid in Sunni Law. In that case the deed described a gift without consideration and the donor gave to his wife his entire interest in the property as to one‑third with power of alienation and as to the rest she was not given any power of alienation but it was provided that she would remain in possession thereof for her life and it was further provided that after her death, the entire gifted property should revert to the donor's collaterals. The Judicial Committee held that as to one‑third the donee had a life‑estate with power to alienate. Their Lordships of the Judicial Committee of the Privy Council on the construction of the deed of gift held that the subject matter of the gift was a life estate only together with power of alienation as to one‑third and their Lordships dismissed the appeal of the heirs of the donee; and their Lordships did not give the effect of an absolute estate as to the gift of life‑estate to one‑third. That decision is a direct authority against a life‑interest being enlarged by the doctrine which invalidates a condition limiting a gift, and subsequent decision of different High Courts took that view. See for example Abdul Khaleque Mondal v. Bepin Behari Bose (A I R 1936 Cal. 465) Bai Saroobai v. Hossain Somji (A I R 1936 Bom. 330) and Mst. Subhanbi v. Mst. Umraobi (A I R 1936 Nag. 113). Therefore in the instant case, a reading of the deed got gift (Exh. A) makes it abundantly clear that Kader Gazi never intended that Mirjan should get an absolute interest in the gifted property, but that a life estate was only created under the gift and then a ,condition was attached to the effect that gifted property on the death of the donee should revert to the donor or his heirs or legal representatives. The matter would have been different if the gift was absolute with a condition attached to it ; but here the terms are manifestly clear that a life interest was created by the deed of gift and a condition was attached thereto and so the condition cannot be discarded in the instant case. Tested in another way, the deed of gift in the instant case also shows that what was granted to Mirjan Bibi was the usufructs of the gifted property for her maintenance and raiments for life. Under the Muhammadan Law interest in usufruct is treated as a distinct species of property. See Baillie, Chapter VI. It also recognises gratuitious gift of usufructs for life, and in such a case the intention of the donor is to be gathered from the words of the deed ; and under the Muhamman Law such a gift must be strictly construed. Baillie; pages 663 and

665. In the instant case, the intention of the donor is clear from the document (Exh. A) that what was .gifted was the usufruct of the property gifted, and in that view also the decision of the Court of appeal below appears to me sound. Compare the observations of the Judicial Committee of the Privy Council in Sardar Nawazish Ali Khan v. Sardar Ali Raza khan (751 A62:PLD1948PC23) though a case under the Shia Law but the observations of Sir John Beaumont are general and instructive in this context. So considering the matter in all its various aspects, I any of opinion that the decision of the lower Appellate Court in the facts of this particular case is sound both on principle and on authority ; and I overrule the only contention of Mr. Modaris Ali. The result, therefore, is that this appeal fails and is dis missed with costs. K. B. A. Appeal dismissed.