Madras High Court
Mohamed And Anr. vs Kairum Bivi And Ors. on 8 December, 1953
Equivalent citations: AIR 1954 MADRAS 769, 1967 MADLW 413
JUDGMENT Rajagopala Ayyangar, J.
1. This second appeal has been referred to a Bench for the purpose of settling the question as to whether a Sunni Muslim in the State of Madras can create a life estate with vested remainder. In the view, however, which we are taking regarding the deed of settlement, Ex. B. 1, in this case, it is unnecessary to decide the question raised in the order of reference.
2. Defendants 4 & 5, who are the appellants in the second appeal, are the beneficiaries under a deed of settlement executed by one Fakir Moideen, on 24-7-1941. Two main questions have been raised as regards the validity of this deed quoad items 4 and 5.
They are (1) whether the deed on its proper construction creates a life interest in favour of the donees with the result that the same is avoided having regard to the settled rule of Muslim law against the creation of such partial interests and (2) whether the donees took possession of the property or whether no possession was transferred so that the gift is avoided under Muslim law.
Though the trial court gave a finding that no possession passed after the execution of the settlement deed in July 1941, there has been no finding by the appellate court upon this point with the result that if we disagree with the finding of the lower appellate court as regards the construction of the document the matter will have to be remanded, to the appellate court for the purpose of going into the question as to whether possession has passed after the execution of the settlement deed Ex. B. 1.
3. The principal question, therefore, is as to whether Ex. B. 1 is valid under Muslim law. Under the Muslim law, while there is a prohibition against the creation of successive interests in the sense of life estate and a remainder "Muslim law does recognise and insist upon a distinction between the corpus of the property itself and the usufruct in the property. Over the corpus of property the law recognises only absolute dominion, heritable and unrestricted in point of time; and where the 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 interest."
(Vide the decision in -- 'Nawazish All Khan v. Ali Raza Khan', AIR 1948 P. C. 134 at p. 138 (A).
4. In the light of this principle, the question for consideration is whether Ex. B. 1 settlement deed dated 24-7-1941 creates a life interest in favour of the settlor with a remainder in favour of the beneficiaries, or whether it creates an absolute interest in the beneficiaries subject to a reservation of the usufruct in favour of the settlor.
The deed, after reciting that the settlor was out of love & affection executing the settlement proceeded to state that the settlor settles the property described, upon himself for life and the remainder in equal shares upon the settlees absolutely. Subsequent to this paragraph, there are two other paragraphs which clarify what has already been stated and in our opinion give effect to the interest which the settlor had in executing this document. The terms of these paragraphs are :
"The settlees shall have absolute estate over the property described hereunder in equal shares each taking a half and the said estate shall be taken forthwith, the enjoyment of the income being postponed during the lifetime of the settlor."
The paragraph that follows is even more significant. It states:
"This settlement deed further witnesseth that the settlees have already taken possession of properties and will themselves be responsible for collecting and paying the income to the settlor during his lifetime."
The courts below have held that by reason of the first clause of the paragraph set out above where the settlor says that he creates a life in his favour, the intention of the settlor was the creation of a life interest and a remainder and that the latter clauses have to be rejected as being repugnant to this dominant intention.
We do not agree in this construction of the settlement deed. All the terms of the settlement deed have to be taken together and rejection for repugnancy must be the last resort of a court of construction and viewed in this perspective, it is clear tnat the intention of the settlor was that the settlees should have an immediate and absolute interest in the properties.
By the use of tlie expression "forthwith" and the furher recital that the settlees had already taken possession of the properties and the further fact that the settlees are made responsible for collecting and paying the income to the settlor during his lifetime this dominant intention is made clear. If these clauses are read along with the earlier clause relating to the creation of the estate of the settlor in himself in the property, it is clear that what the settlement deed contemplated was the creation of an absolute interest in the corpus in favour of the settlees reserving merely the usufruct to himself for his lifetime. In this view it is obvious on the authority cited above, that the settlement deed is valid and is an effective disposition of property in favour of the beneficiaries.
5. The second appeal will therefore have to be allowed and the appeal remanded to the lower appellate court for determining the question as to possession, which has not been determined by the lower appellate court. The costs of the appeal in this court will abide the result.
6. Though there is an appeal as regards items 7 and 8 also there is no substance in the contention raised and as regards this the appeal will be dismissed with proportionate costs.
7. There will be a proportionate refund of the court fee paid viz., as regards that attribute to items 4 and 5.