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33. Thus in the case of Nur Mahomed who follows on the life estate of Jairajbhai Peerbhoy, is the gift to him valid by Mahomedan Law. I am of course here confronted with a very great difficulty arising upon the cases of Umes Chander Sircar v. Mussummat Zahoor (1590) L.R. 17 1. A. 201 and Banoo Begum v. Mir Abed Ali (1907) 9 Bom. L R. 1152 where in the one case their Lordships of the Privy Council, in the other a Bench of this Court consisting of the Chief Justice and Heaton J., held that both according to the Sunni and Shiah Schools of Law, a Mahomedan might create a succession of life estates which were said to be something like what we in England call vested remainders. I have to observe upon both those cases that what is principally in controversy here and what was principally in controversy in Jainabai v. R.D. Sethna, never seemed to come prominently forward either in the argument or in the decisions of the Courts and that is whether an estate of this kind can be made the subject of a gift inter vivos. In the Privy Council case, it was only those persons who were interested in the gifts over on failure of issue to the donee with the life estate who came before the Court and the question really seemed to be in their Lordships' opinion whether a postponed estate of that kind could be validly transferred or as I prefer to say trafficked in. I have never been able to understand how in that case it was held that the gifts over to the two sons were more than contingencies, although apparently their Lordships thought they were something less than vested remainders. For they are very careful to say that they are something like vested remainders. The facts were that these gifts over were only to take effect in the event of the lady whose life estate was interposed not having a son. Now, in the case of a child bearing woman married, I cannot conceive of a more uncertain event than that of her having or not having a male child. And whatever nice refinement of meaning the law may place upon such a condition, I am quite certain that any person waiting upon it would have to regard it as a contingency, and a very uncertain contingency indeed. 1 can quite understand that if their Lordships of the Privy Council had had their minds upon that point and it" it had been really a case of vested remainders, they might have come to the conclusion, though I do not think they .ever did, that such a vested remainder could properly be made the object of a gift inter vivos. But I cannot conceive how it ever could have been held, as I am sure it never has yet been held, that a gift in fuluro contingent upon the happening of uncertain events, could be given consistently with the requirements of the Mahomedan Law of gift inter vivos, nor do I see how in the particular case the vested remainders could have been any more made the object of such a gift because they were called vested remainders (liable to be displaced by the happening of an uncertain event than if they had been called simply contingent interests or contingent remainders). I am not dwelling upon this for the purpose of splitting hairs but because there is very real reason in my opinion why a vested remainder in the strictest sense of the English words and a fortiori a contingent remainder could not possibly by any stretch of ingenuity be made the subject of a valid Mahomedan gift inter vivos consistently with the requirements of the Mahomedan Law on that head and for this very simple reason that no man can give possession in presenti of that which may never come into possession at all. Thus though theoretical legal meaning given to vested remainder may seem obscure, the point is equally true whether the interests be of that kind or a mere contingency. For it is of the essence of a Mohammedan gift inter vivos that the donor should divest himself of the actual possession of the thing given and transfer it to the donee and if the donee does not take physical possession of it at the time of making the gift, then until he does, the gift is revocable. Nor was there ever such a conception in the minds of the Mahomedan lawyers who worked out their theory of the law of gift inter vivos as the fictitious possession of intermediaries as between the donor and the donee which would suffice for the divesting of the donor in pntsenti and the taking of the donee in future. Nor is this difficulty in the least reduced, much less removed, by taking all trustees as donees. Trustees were in no sense known to the Mahomedan Law as donees of a thing given, so as to be able to take and hold against the donor for a third person, the real and true donee, who again does not receive the corpus, that is to say, the physical possession from them but merely gets usufruct.

34. This attempt to ingraft the whole of our artificial system of trusts and settlements upon the Mahomedan Law has super induced such a hopeless confusion of thought and misuse of language that I believe it now to be quite impossible to avoid, endeavoring to administer the Mahomedan Law on this subject, coming into conflict on the one hand with the standard authorities and on the other with the reported cases. But what I commenced by insisting upon is that even a vested remainder, that is to say, an estate always ready to come into possession upon the determination of some intermediate estate is a thing which clearly never could, according to the conceptions of earlier Mahomadan lawyers, have been given inter vivos.

35. When we come to Banoo Begum's case, it is very easy to trace how this misconception has arisen. In the first place, their Lordships there followed the case of Umes Chander, so far as to take from it the broad and general proposition that the Mahomedan Sunni Law recognizes the creation of a succession of estates something like what we in England call vested remainders. Then their Lordships proceeded to consider the Shiah Law, which is much more favorable, I think, than the Sunni Law to this proposition. A number of Arabic texts were translated and laid before their Lordships from which they drew their conclusions that the lawyers of the Shiah school had a very clear conception of, and had always intended to sanction the giving away of, a succession of life estates. In that case what their Lordships were realty deciding, was, I think, whether one of these future estates could be made the subject of transfer within the meaning of Sections. 6 of the Transfer of Property Act, that is to say, whether it was something more than a mere expectancy or spes successions. But assuming that estates of the kind might be more than a mere spes successions, a reference to the texts upon which that decision is founded and a reference to that topic of law to which they belong in the standard works will show that neither the branch of law itself nor the particular texts cited have any reference whatever to the creation of estates like vested remainders. All these texts belong to what is called in Mahomedan Law the doctrine of hoobs or the tying up of certain limited interests, and a very cursory examination of the whole subject will show that the law never did go any further in this direction than allowing a donor to give residence (sukna) or an interest for life (umra) or a use for a term (rukba) in the corpus of his property to one or more persons in succession. But the vested remainder, if there was anything in the least like a vested remainder, was the donor's own, for it is the common feature of all these hoobs that the corpus on the exhaustion of the interests given must return automatically to the donor. And that is the exact opposite of all the cases which I have had to consider. In that connection it is the exact opposite of the present case.

36. There is, I believe, no authority to be found anywhere in the Mahomedan Law books themselves for the proposition that a man giving inter vivos may give an estate first to himself and then to A for life and then to B absolutely.

37. It has been strenuously contended on behalf of the defendants by Mr. Tyabji that all these highly artificial notions of the English law were well known to and fully developed by the subtle intellects of the Moslem Law schools during the height of Moslem intellectual powers in the early middle ages, and he points to a rare allusion here and there to the doctrine of Amanat or trust. But that is a misuse of the word, if it is intended to be synonymous with our extraordinarily elaborate and artificial law of trust. It is perfectly true that in simple instances, Moslem lawyers recognize a fiduciary relation, as in the case of a bailee or the father of a minor receiving property for the use of his child. Further than that I am unable to see that they ever went or intended to go, and I am still of opinion and repeat what I said in jainabai v. R.D. Sethna, that I do not believe the English notion of trusts had any counterpart whatever in the brains of any Mahomedan lawyer or text book writer or that it could have been applied as it is applied, in England in making voluntary settlements to the Mahomedan law of gift inter vivos. For, if we take the actual cases, then we ( shall see that as in Banoo Begum's case, there could have been no possible delivery of seisin in favour of those who took , remoter estates. And if we take the other case of Umes Chancier, it is equally clear that not only could there have been no possession given but that there could have been no intention of giving possession to the remainder man until the time had passed in which the tenant for life might have had a male child. And what of such vested remainders as these being capable of transfer under the Transfer of Property Act? Here, for example, to apply the rule in Banoo Begum's case and if we suppose that they were vested remainders after the death of Nur Mahomed, for if there were vested remainders in Umes Chander's case, I really cannot see why there should not be vested remainders in this case, who would have given anything for them during Nur Mahomed's life and while he was still capable of having a son ? These gifts over after the death of Nur Mahomed, notwithstanding the decisions in Umes Chander and Banoo Begum, appear to me to be too plainly contingent to admit of any dispute. But apart from their contingency and restricting myself at present to Nur Mahomed's own case, that too was a gift in future, I do not see how it could possibly be perfected by a delivery of seisin and actual possession to Nur Mahomed during the life-time of Jairajbhai who had reserved to himself actual possession and enjoyment as well as the power of revocation. It is only by introducing the machinery of our English Law of Trust that it is possible to make any approach at all to what the Mahomedan Law required as an indispensable condition precedent to a valid gift and that machinery, as I say, was totally unknown to the Mahomedan Law.