A. K. SEN, J. ( 1 ) IN this appeal from an appellate decree and in the revisional application in the alternative the point that arises for consideration is as to what is the true legal effect of a life interest created by a Deed of Settlement dated March 11, 1944, in favour of two of the Settlees. The two courts below have differed in their views. The trial court held that the settlement amounted to a gift, the stipulation that it would be limited to the life of the Settlees is a condition which derogates from the absoluteness of the gift and such a stipulation being unknown in Mahomedan Law, the gift would prevail though the stipulation is void. The court of appeal below however held to the contrary that there was no bar to the creation of a life estate under the Mahomedan Law so that under the settlement the Settlees got the lands for enjoyment during their lifetime and not beyond that. ( 2 ) TO appreciate the real dispute between the parties and decide the point raised in this appeal it would be necessary to refer to the facts in the background which may be stated shortly as follows. ( 3 ) ONE Aduri Bibi by a registered Deed of Settlement dated March 11, 1944, settled the disputed lands in favour of two ladies, namely, Sm. Sarijan Bibi and Sm. Amena Bibi for their life. The settlement provided that on the death of the Settlees the lands would revert to the estate of the Settlor and to its possession. The Settlement also provided that the Settlers would have no right to transfer or encumber the lands in any manner. In the revisional survey records the lands were recorded in the name of the two Settlees, as foresaid. ( 4 ) ON January 9, 1964, Meher Ali, son of Aduri Bibi instituted the suit out of which the present appeal arises. It was a suit for declaration of title, for confirmation of possession and permanent injunction. In the revisional survey records the lands were recorded in the name of the two Settlees, as foresaid. ( 4 ) ON January 9, 1964, Meher Ali, son of Aduri Bibi instituted the suit out of which the present appeal arises. It was a suit for declaration of title, for confirmation of possession and permanent injunction. According to the plaintiff on the death of Amena Bibi and Sarijan Bibi the suit lands reverted to him as the surviving sole heir and legal representative of Aduri Bibi and he possessed the suit lands since such reversion but the defendants who are the daughters of Amena were threatening to disturb his possession on the basis of the record of rights in favour of Amena and Sarijan Bibi. Hence, the suit. ( 5 ) IN contesting the suit the defendants claimed absolute title to the suit property. According to them, under the Settlement from Aduri Bibi Amena and Sarijan acquired absolute title since creation of a life estate is not within the sanction of the Mahomedan Law. The defendants further claimed to be in possession of the suit lands and they denied the plaintiff's title or possession in respect thereof. ( 6 ) THE suit was dismissed by the trial court since the said court upheld the defence contention that under the Settlement Amena and Sarijan acquired absolute interest in the suit lands and, as such, the same could not revert to the Settlor or her heir. As indicated hereinbefore, the learned Judge in the trial court construed the Settlement to be a gift and the stipulation that it would revert to the donor's estate on the death of the Settlees as a condition derogating from the absoluteness of the gift so that the stipulation was void and the gift was absolute. ( 7 ) THE original plaintiff being dead, his heirs and legal representatives preferred an appeal. The learned judge in the appellate court reversed the finding of the trial court as to the effect of the Settlement. The learned judge in the court of appeal below held on the other hand that there is no legal bar to creation of a life estate under the Mahomedan Law so that by the Settlement what was provided was that the two Settlees would possess the suit lands till their death and the same would revert to the estate of the Settlor, Aduri Bibi. The Deed of Settlement, therefore, created a life estate simplicitor and not gift with a condition so that the Settlees did not get the suit lands absolutely and the defendants did not acquire any interest thereto after the death of the Settlees. The learned judge of the court of appeal below, however, did not accept the plaintiff's case of possession but found possession with the defendants and remanded the suit allowing an opportunity to the plaintiff to amend the plaint by incorporating a prayer for recovery of possession. ( 8 ) IT is against the aforesaid order remand that the present appeal has been filed with the alternative application for revision. Mr. Samanta appearing in support of this appeal has strongly contended that the court of appeal below erred in law in upholding the creation of a life interest which is unknown in Mahomedan Law. In arguing this appeal very ably it has been contended by Mr. Samanta that life estate in law implies transfer of the property itself to the transferee with certain limitations as to its use and alienation. In this sense of the term a life estate is not recognised by Mahomedan Law. Reference is made to two decisions of the Privy Council in the cases of (1) Hameeda v. Badloon, (1872) 17 WR 525 and (2) Abdul Gafoor v. Nijamuddin, (1892) 19 Indian Appeals 170. According to Mr. Samanta life estate not being recognised by Mahomedan Law any settlement creating such estate must be interpreted as a gift with a condition and the condition being repugnant to the gift, the condition must fail and the gift must prevail as an absolute one. Mr. Samanta, however, in his fairness has conceded that in view of two later decisions of the Privy Council including one on appeal from (3) AIR 1925 Oudh 568 (relied on by the learned judge of the court of appeal below) it is possible in Mahomedan Law to make a gift of the Manafi or the usufruct for life in favour of the donee but the learned judge of the court appeal below failed to note the distinction between creation of a life estate and gift of the Manafi for life so that he upheld the former as legal in Mahomedan Law without, however, any finding that by the disputed settlement what was gifted was merely the Manafi and not the land itself. The latter two decisions of the Privy Council are in the cases of (4) Amjad Khan v. Ashraf Khan, 56 Indian Appeals 213 and (5) Sardar Nawazish Ali Khan v. Sardar Khan v. Sardar Ali Reza Khan, 75 Indian Appeals 62. On the construction of the Settlement made by Aduri Bibi in the present case it had been strongly contended by Mr. Samanta that the Settlor intended and made a gift of the lands in favour of the Settlees so that in the present case there was a gift of the corpus and not of the Manafi or the usufruct and the further stipulation in the Deed of Settlement which restricted the Settlees' right of alienation or provided for reversion must be construed to be a stipulation which derogates from the gift itself and as such even now the old principle would apply, namely, such a restriction on a gift being not recognised by Mahomedan Law, the restriction must fail and the gift must prevail. In this view, Mr. Samanta contends that it was the learned judge in the trial court who was right in his conclusion that the defendants' predecessors-in-interest got the lands absolutely. According to Mr. Samanta, therefore, the suit was rightly dismissed and the learned judge of the court of appeal below went wrong in reversing the said decision. ( 9 ) GIVING anxious consideration to the contentions put forward before me by Mr. Samanta, I am unable to accept the same though it must be said that a part of his criticism in respect of the findings of the learned judge of the court of appeal below is justified. It appears to me that the learned judge of the court of appeal below in the present case expressed himself rather loosely in observing that there is no bar to the creation of a life estate under the Mahomedan Law which has justly been criticised by Mr. Samanta. Life estate in its technical sense, that is to imply transfer of the ownership of the property itself limited to the life of the donee without any right of alienation is not recognised by Mahomedan Law. Samanta. Life estate in its technical sense, that is to imply transfer of the ownership of the property itself limited to the life of the donee without any right of alienation is not recognised by Mahomedan Law. In Sardar Nawazish Ali Khan's case (supra) the Privy Council pointed out ?in general Muslim Law drawn 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 equality like legal and equitable estates or in point of duration like estates in fee simple, in tail, for life, or in remainder?. But the view that once prevailed on the old two Privy Council decisions in the cases of Hameeda v. Badloon and Abdul Gafoor v. Nijamuddin (supra) to the effect that in Mahomedan Law life interests are nothing more than a gift with a repugnant condition where the condition must fail and the gift must prevail as an absolute one, now stands exploded in view of the latter decisions of the Privy Council. This court in the case of (6) Anjuman Ara Begum v. Nawab Asif Kader, ILR (1955) 2 Calcutta 109 reviewed the legal position on the point and observed ?the validity of life grants in Mahomedan Law was also, in general, affirmed and expressly recognised (See page 120 of the report)?. ( 10 ) IN Mahomedan Law some importance is attached to the difference between Ayn (the corpus) and Manafi (the usufruct), in as much as, each of them can be the subject matter of an independent gift. Under the said law tough the gift of the corpus must be an absolute transfer of its ownership so that there can be no restriction imposed thereon, one can make a gift of the usufruct limited for time because ( 11 ) IN the case of (3) Amjad Khan v. Asraf Khan, AIR 1925 Oudh 568, Sir Wajir Hasan A. J. C. took the view that a court is not compelled to hold that where a life interest had been created the Mahomedan Law requires that it should be enlarged to an absolute estate. Creation of such a life interest is permissible because creation of such an interest in a property is different from and is not the same thing as gift of the corpus. The learned Judicial Commissioner in that case on construction of the Deed under consideration held that the Settlor merely created a life interest without gift of the corpus and such a life interest is valid in law. On an appeal to the Privy council the construction of the Deed as made by Sri Wajir Hasan, the learned Judicial Commissioner was upheld and though the question of validity of a life interest by Law of Gifts in Mahomedan Law was left open the Privy Council expressly overruled the plea that such life interest should be enlarged into an absolute interest. ( 12 ) THE view taken by Sir Wazir Hasan was approved by the Privy Council later again in the case Nawazish Ali Khan (supra) wherein relying on Hedaya it was held that interests limited in point of time can be created in the usufruct of the property and the domain over the corpus takes effect subject to any such limited interests. It was observed ?limited interests have long been recognised under Shia Law ???????. Their Lordships think that there is no difference between the several schools of Muslim Law in their fundamental conception of property and ownership. A limited interest takes effect out of the usufructs under any of the Schools. ? ( 13 ) AS indicated hereinbefore the law on the point was reviewed by this Court in a Bench decision in the case of Anjuman Ara Begum v. Nawab Asif Kader (supra) and the principles laid down are as follows: - ?in the light of what we have stated so far the true approach when a Mahomedan grant falls for consideration is first to construe the Deed as a whole, bearing in mind that life grants are not very familiar in Mahomedan Law. If, upon such construction, the grant is held to be an absolute grant, no further construction, the grant is held to be an absolute grant, no further question arises. If, however, the grant is found to be limited grant, the direct or the immediate subject matter of the gift has to be ascertained. If, upon such construction, the grant is held to be an absolute grant, no further construction, the grant is held to be an absolute grant, no further question arises. If, however, the grant is found to be limited grant, the direct or the immediate subject matter of the gift has to be ascertained. If it is, the corpus, as explained above, in any restrictive condition, affecting the same, will be invalid and the grant will have effect as an absolute grant. If on the other hand, the direct or the immediate subject matter of the grant be the limited interest and not the corpus, the grant takes effect out of the usufruct as a valid limited grant. ? the same view was taken by the Andhra Pradesh High Court in the case of (7) Sk. Masatan Bi v. Sk. Bhikari Sahab, AIR 1958 Andhra Pradesh 751. ( 14 ) MR. Samanta placed strong reliance on a decision of the Allahabad High Court in the case of (8) Siddiq Ahmad v. Wilayan Ahmad, AIR 1952 All 1 . But that decision does not lay down any principle to the contrary. In that case on the construction of the will it was found that the person in whose favour the limited interest was created was given the property itself and the will further provided that the property would go to his son absolutely. In such circumstances, Their Lordships of the Allahabad High Court held that the deed could not be interpreted as a mere transfer of the usufruct. It was intended to be a bequest of the corpus with certain limitations, those limitations must fail. ( 15 ) SUCH being the position in law what is of primary importance is to construe the Deed. A grant creating a limited interest when can be construed without any inconsistency as one limited to the use of the property and enjoyment of the usufructs thereof should be upheld. If on such a construction it is found that the grantor merely granted a life interest by way of transfer of the use of the property and not the corpus then it must be held to be valid. If on such a construction it is found that the grantor merely granted a life interest by way of transfer of the use of the property and not the corpus then it must be held to be valid. The Deed of Settlement in the present case recites that the Settlor is divesting herself of the property which is being given to the Settlees by the Deed of Settlement and that the Settlees during their life time would enjoy and possess the property being vested with such right and interest as the Settlor had by paying rents to the landlord. To such possession and enjoyment by the Settlees neither the Settlor nor her heirs or legal representatives shall be entitled to raise any claim or objection. Simultaneously, however, the Deed goes on recite that the Settlees will have no right of alienation or creation of any encumbrance thereon and that on their death the property would revert to the Settlor's estate possession. Construing the grant, as aforesaid, in its substance it appears to me that the Settlor intended and created merely a life interest in favour of the Settlees but never intended to convey the corpus. Mr. Samanta no doubt laid great stress on the fact that the Settlees were vested with the rights of the Settlor in the property but in my view those words are to be interpreted in the light of its context. It is quite clear that the Settlees were being given the right to use and enjoy the property during their life time without any power of alienation of creation of any encumbrance thereon. Vesting of the Settlor's right and interest in the property in the Settlees is limited for the purpose of such enjoyment and use of the property and not for acquiring any ownership therein because that will not be consistent with the grant itself. If the Privy Council on construction of the Deed under consideration in Amjad Khan v. Asraf Khan (supra) could hold the grant to be a life interest, I find no reason why the present Deed under consideration should not be given the same construction. If the Privy Council on construction of the Deed under consideration in Amjad Khan v. Asraf Khan (supra) could hold the grant to be a life interest, I find no reason why the present Deed under consideration should not be given the same construction. Apart from the fact that in this Deed like the one under consideration by the Privy Council there is a clear provision for reversion to the donor's estate, the Deed makes it clear and specific that what is being granted is merely a life interest and nothing more. ( 16 ) IN this view, I must overrule the points raised by Mr. Samanta and accept the ultimate conclusion of the learned Judge of the Court of appeal below that the grant under consideration in the present case created a life interest which is valid in Mahomedan Law for reasons given hereinbefore so that on the death of the two Settlees the same reverted to the Settlor's heir and legal representative, the plaintiff. The suit was accordingly rightly remanded for re-hearing with the amendment allowed by the learned judge of the court of appeal below. In my view, the court of appeal below was well justified in granting an opportunity to the plaintiff to seek an amendment and pray for recovery of possession in the facts and circumstances. ( 17 ) THIS appeal, therefore, fails and is dismissed without any order as to costs. The application in the alternative also fails and is dismissed. This court, however, records appreciation of the great assistance obtained from Mr. Samanta. Appeal fails and dismissed.