JUDGMENT P. Subramonian Poti, J. 1. A preliminary objection is raised. In execution of a decree for recovery of money obtained against the assets of deceased Kunhimoideenkutty Haji represented by his wife and children certain item of property was attached, to which first defendant, the wife of Kunhimoideenkutty Haji laid claim as her own. Since she was not personally liable under the decree she contended that the attached item was not liable to be proceeded against and the attachment should be raised. The claim to that item was based on a gift Ex. Al dated 2-7-1951 from her deceased husband. The gift was long prior to the suit. The answer of the decree holder was that the gift was void under the Mohammedan law as it did not convey possession. If it was not so void the objection by the first defendant was sustainable and proceedings could not be taken. Therefore the question that had to be decided on the objection was whether there was delivery of possession under the gift deed Ex. Al, and if not whether the gift was void in law. The execution court held that the gift was void. The appellate court concurred with this. Against that this second appeal has been filed. 2. The preliminary objection relates to maintainability of this appeal. According to counsel for the respondent who is the decree holder no appeal lay against the order passed by the execution court as that was on a claim under O.21 R.58 of the Code of Civil Procedure. If that be the provision applicable no appeal lay. But if the adjudication was one under S.47 of the Code of Civil Procedure an appeal to the court below and a second appeal to this court could be maintained. 3. The objection to the attachment was raised by a party to the decree. It is true that the claim was based upon an independent right. But even such a claim when raised by a party to the decree is one concerning the execution of the decree and the matter falls under S.47 of the Code of Civil Procedure. But in a case where the claim is urged in another capacity such as a trustee on behalf of a trust, as a guardian of the minor on behalf of the minor or as the mahanth of a Matt, the objection would not fall under S.47. But in a case where the claim is urged in another capacity such as a trustee on behalf of a trust, as a guardian of the minor on behalf of the minor or as the mahanth of a Matt, the objection would not fall under S.47. since though the individual who files the objection happens to be the same it would be as a different legal personality that he would be making such objection. In such an event the claim petition would be one under O.21 R.58 of the Code of Civil Procedure. No appeal would lie against such order. The case cited before me by counsel for the first respondent in Madras Chit Fund Ltd. v. Krishnamoorthy ( 1963 KLT 605 ) was a case of a claim by a trustee of a trust who happened to be personally the defendant in the suit. It follows that the appeal lies to this Court. 4. On the merits the question is whether Ex. A-1 is a void document as contended by the decree holder. On the facts of this case the point for decision would be whether when a donor reserves to himself the right to take the usufructs from the property gifted but otherwise permits the enjoyment of the property by the donee, the gift would be void. Would it be different from a case where the donor reserves possession of the property in himself while giving the property by way of gift to the donee? Before I go into this question I will refer to the terms of Ex. A-1. 5. The gift is executed by Moideenkutty in favour of his wife Kunhayissu on the eve of his leaving for Mecca on Haj pilgrimage. He refers to the contribution by the donee for acquisition of the properties gifted. Then he provides that till his death the income from the property was to be taken by him and out of that after paying the tax and rent the balance was to be appropriated by him. Reserving this right in himself he was gifting the property to the donee. He further mentions that he has no right thereafter in the property excepting to take the usufructs from time to time. The donee was to be in possession as owner of the property and enjoy it. It also mentions that the application for transfer of patta was being filed. 6. He further mentions that he has no right thereafter in the property excepting to take the usufructs from time to time. The donee was to be in possession as owner of the property and enjoy it. It also mentions that the application for transfer of patta was being filed. 6. The terms of Ex. A-1 indicate clearly that the only reservation made in the gift is that of taking the income from the properties during the donor's life time. Subject to that the document purports to transfer title and possession. On the clear words of the disposition there is no difficulty in finding that there is a transfer of title and possession subject to the right of the donor to take the income from the property during his life-time. It is contended that this reservation would be bad in law, as under the law governing the donor, any gift not accompanied by delivery of possession would be invalid. 7. It is well settled that where the donor reserves possession of the property gifted to himself the gift may not be complete under the Mohammedan Law. As is well settled the three elements necessary for a valid gift under Mohammedan law are: "1. a declaration of gift by the donor, 2. an acceptance of the gift, express or implied, by or on behalf of the donee, and 3. delivery of possession of the subject of the gift by the donor to the donee." The question is whether the third requisite is present in the case before me. In cases of gift of property where, from the inherent nature of the property or the interest therein transferred, physical delivery is not possible such delivery as the subject matter of the gift would be susceptible of would be sufficient. The taking of possession by the donee may be actual or constructive. But where a donor is in possession of the property and is in a position to put the donee in possess ion thereof but he does not put the donee in possession the gift is incomplete. Is the case same where it is not possession that is reserved by the donor but the right to take the income ? 8. Muslim law recognises the distinction between the corpus (Ayn) of the property and its usufructs (Manafi). The disposal of the corpus of the property can only be absolute. Is the case same where it is not possession that is reserved by the donor but the right to take the income ? 8. Muslim law recognises the distinction between the corpus (Ayn) of the property and its usufructs (Manafi). The disposal of the corpus of the property can only be absolute. But the right to the usufruct being independent of the corpus even if corpus is transferred by a gift absolutely, the reservation of the right to the usufruct will not amount to a condition repugnant to the absolute grant of the corpus. There is essentially a distinction between reservation of the right to take the usufructs when an absolute gift of the corpus is made and the reservation of the right to be in possession when such an absolute gift of the corpus is made. In the latter case the gift will not be absolute as the corpus necessarily includes the possession of the property and when possession is reserved with the donor there is limitation or condition on the absolute right granted, which under the Mohammedan Law would render the gift void. In the case before me the reservation is only of the usufructs and that is reserved for the life-time of the donor. The disposal of the corpus by way of gift is absolute. Therefore the gift would not be void. 9. The trial court has apparently relied on the decision of this court in Pichakannu v. Aliyarkunju Lebba ( 1963 KLT 226 ) and has come to the decision that in the circumstances of the case Ex. A-1 gift must be found to be void. That is the view adopted by the court below also. But it has to be noticed that this Court, in that decision, was dealing with a case where there was a reservation of possession with the donor. That in such a case the gift would not be void is not contended for the appellants here. In fact the essential distinction between the case of reservation of possession and reservation only of right to take usufructs has been noticed by this Court in the very same case. That in such a case the gift would not be void is not contended for the appellants here. In fact the essential distinction between the case of reservation of possession and reservation only of right to take usufructs has been noticed by this Court in the very same case. Reference is made therein, in that connection to cases where it has been held by courts that notwithstanding such reservation of usufructs the gift is valid and the case has been distinguished from those cases on the particular facts of that case, namely that therein the donor reserved possession in himself. 10. The decision of this court in Pichakannu v. Aliyarkunju Lebba ( 1963 KLT 226 ) followed the rule laid down in Md. Aslam Khan v Khalilul Rehman ( AIR 1947 PC 97 ) that in a case where the donor reserves the right to be in possession and enjoyment the donor does not divest himself completely of all dominion over the properties. The case before the Privy Council in Md. Aslam Khan v Khalilul Rehman (1947 P. C. 97) was one where there was such a reservation and the Privy Council held that the gift would not be competent according to the Mohammedan Law. The essential distinction between such a case and the one where the reservation is not of the possession but of the right to take usufructs as in the case before me is apparent from the decision of the Privy Council in Nawazish Ali Khan v Ali Raza Khan ( AIR 1948 PC 134 ). Sir John Beamont said in that case at Para.19 of that Judgment thus: "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. What Muslim law does recognise and insist upon, is the distinction between the corpus of the property itself (ayn) and the usufruct in the property (manafi). What Muslim law does recognise 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 recognises 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. "If a person bequeath the service of his slave, or the use of his house, either for a definite or an indefinite period, such bequest is valid; because as an endowment with usufruct, either gratuitous or for an equivalent, is valid during life it is consequently so after death; and also, because men have occasion to make bequests of this nature as well as bequests of actual property. So likewise, if a person bequeath the wages of his slave, or the rent of his house, for a definite or indefinite term, it is valid, for the same reason. In both cases, moreover, it is necessary to consign over the house or the slave, to the legatee, provided they do not exceed the third of the property, in order that he may enjoy the wages or service of the slave, or the rent or use of the house during the term prescribed, and afterwards restore it to the heirs." (Hedaya 'Vol. 4,p. 527. Chap.5, entitled "Of Usufructuary Will.") This distinction runs all through the Muslim law of gifts - gift of the corpus (hiba), gifts of the usufruct (ariyat) and usufructuary bequests." A Division Bench of the Travancore-Cochin High Court in Maitheen Beevi Umma v. Varkey ( 1956 KLT 444 ) considered the same question. Dealing with a document in respect of which it was contended that the terms of the gift reserved life estate to donor and his wife and the gift was only of the vested remainder the Court observed thus: "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 lifetime 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 ariat. 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 lifetime and thereafter to his wife for her life-time. Such conditions as seen above would be perfectly valid.', The same view was taken by the High Court of Madras in K. Veerankutty v P. Umma ( AIR 1956 Mad. 514 ). 11. In this connection it is well to remember the oft quoted passage from the decision of the Privy Council in MD Abdul Ghani v MT. Fakhr Jahan. AIR 1922 PC 281 ): "In considering what is the Mohammedan law on the subject of gift inter vivos Their Lordships have to bear in mind that when the old and admittedly authoritative texts of Mohammedan law were promulgated there were not in the contemplation of any one any Transfer of Property Acts, any Registration Acts, any Revenue Courts to record transfers of the possession of land, or any zamindari estates large or small, and that it could not have been intended to lay down for all time what should alone be the evidence that titles to lands had passed. The object of the Mohammedan law as to gifts apparently was to prevent disputes as to whether the donor and the donee intended at the time that the title to the property should pass from the donor to the donee, and that the handling over by the donor and the acceptance by the donee of the property should be good evidence that the property had been given by the donor and had been accepted by the donee as a gift." The Supreme Court cited this passage with approval in Katheesa Umma v. Narayanath Kunhamu ( AIR 1964 SC 275 ). 12. On the facts therefore I must find that Ex. A-1 gift is valid. 12. On the facts therefore I must find that Ex. A-1 gift is valid. If that bethe case the donee thereunder gets absolute right in the property and that would mean that her objection to the execution of the decree against her properties would be sustainable. In that event she is entitled to succeed in the appeal. 13. An interesting contention has been raised in this case and that is whether the validity of a gift, not followed by delivery of possession could be challenged by a stranger or whether such challenge is available only to the donor and those claiming under him. It appears to me that the dispute will require investigation only in a contest between persons who claim under either of these parties and the question will be relevant only when the matter is in issue between them. I am supported in this view by the decision of the High Court of Madras in Kairum Bi v. Mariam Bi ( AIR 1960 Mad. 447 ) where, following the decision of the Nagpur High Court, Justice Balakrishna Aiyar held: "One final observation must be made and it is this. The question whether possession has been delivered is relevant only when an issue is raised between the donee or those claiming under him on the one side and the donor or those claiming under him on the other. Where a gift is otherwise proper a stranger cannot invoke the rule that the gift is bad because there has been no delivery of possession. In ILR 1946 Nag. 510 (AIR 1946 Nag. 357), Bose, J. observed: "I have decided in Halimbi v. Rahmatali, ILR 1941 Nag. 669, 672: (AIR 1940 Nag. 70 at p. 72), that the question of delivery of possession is only relevant as between the donor and those who claim under him or her and the donee. If the donor upholds the gift then it is not open to strangers like the present defendants to question it on the ground of want of delivery of possession'" We think that this is the proper way of looking into the matter." I am in respectful agreement with this view. In the result, the second appeal is allowed in reversal of the decrees of the courts below. The claim petition will stand allowed. In the circumstances of the case, I direct the parties to suffer costs in this second appeal.