Sathar Sayeed, J. — The unsuccessful appellants in A.S.No. 755 of 1969 have preferred the above Letters Patent Appeal. One Sheik Ismail filed a suit for partition and separate possession of his share in E C. and D schedule properties. The short case of the plaintiff was that he is the eldest son of Shamsudeen and the first defendant in O.S.No. 38 of 1968 is his sister. Defendants 2 and 3 are the sons of the first defendant. Shamsudeen had another son by name Abdul Khader who died in the year 1964 and the 4th defendant is the wife of the said Abdul Khader. The plaintiff’s mother Hussain Beebi wife of Shamsudeen died in the year 1962. According to the plaintiff, B schedule properties belong to his mother and he is entitled to a 3/10 share in those properties. His further case was that C and D Schedule proper-ties are family properties and he is entitled to a share in the said properties. His further case was that Shamsudeen has executed two documents under Exhibits B-7 and B-10 in the year 1966 without the consent of the other sharers and the said two settlement deeds were not valid and binding on him. 2. Therefore, he claims a share in the properties. Defendants 1 to 3 contended that the plaintiff is not entitled to any share in the properties except in item 3 of B schedule. They also disputed the share of the plaintiff. Inter alia, these defendants contended that by a settlement deed under Exhibit B-7 dated 10th January 1966, Shamsudeen has settled the first item of C schedule property to defendants 1 to 3, reserving to himself only the income therefrom for his life. They also contended that item 2 in C schedule has been settled by Shamsudeen on the second defendant by a deed dated 10th June, 1966 and possession was given to the second defendant. Therefore they contended that the plaintiff cannot claim any share in the C schedule property. We are not concerned with the remaining facts of the case. The trial Court on going through the documents and also the oral evidence, held that the plaintiff is entitled to a share in item 3 of B schedule and item 1 in C schedule. He has also granted a decree for a sum of Rs. We are not concerned with the remaining facts of the case. The trial Court on going through the documents and also the oral evidence, held that the plaintiff is entitled to a share in item 3 of B schedule and item 1 in C schedule. He has also granted a decree for a sum of Rs. 307 towards 2/3rd share of the plaintiff with respect to the moveables in |D schedule and directed the plaintiff to pay a sum of Rs. 3,910 to defendants 1 to 3 towards the debts payable by his father and left by him at the time of his death. The learned trial Judge has also directed the plaintiff to pay a sum of Rs. 667 to defendants 1 to 3 payable by the plaintiff towards his share with respect to the funeral expenses of his father Shamsudeen. It is against this judgment and decree in O.S. No. 38 of 1968, defendants 1 to 3 preferred A.S. No. 755 of 1969 to this Court. The main contention and attack of defendants 1 to 3 in A.S. No. 755 of 1969 to the trial Court decree was that the trial Court erred in granting a decree with respect to item 1 of C schedule property in favour of the plaintiff. Let us see what is C schedule property and under what instrument the plaintiff claims that he is entitled to a share in that property. Shamsudeen who is the father of the first defendant and grandfather of defendants 2 and 3 has executed a settlement deed Exhibit B-7 dated 10th January, 1966 in favour of the first defendant. Item 1 of this settlement deed is a rice mill, item 2 is a trust property wherein certain directions are given for the performance of certain Fathias from and out of the income of the said item. Item 3 is a house property in which Shamsudeen and his sons had shares. The plaintiff who is one of the sons of Shansudeen claims a share in item 1 of the suit C schedule property. As far as item 3 of C schedule is concerned, there is no dispute and nothing has been argued before N. S. Ramaswami, J. who heard the appeal A.S. No. 755 of 1969. The main contention of defendants 1 to 3 who are the appellants before us and who were the appellants in AS. As far as item 3 of C schedule is concerned, there is no dispute and nothing has been argued before N. S. Ramaswami, J. who heard the appeal A.S. No. 755 of 1969. The main contention of defendants 1 to 3 who are the appellants before us and who were the appellants in AS. No. 755 of 1969 is that the plaintiff is not entitled to a share in item 1 of C schedule because, under the settlement deed Exhibit B-7 the disposition was in favour of Shamsudeen so long as he was alive and subsequent life estate in favour of the first defendant and ultimately the property goes to defendants 2 and 3. According to the appellants such a settlement is valid and binding on the plaintiff and the decree granted by the trial Court to the plaintiff with respect to this item is illegal and invalid. 3. When the appeal was heard by N.S. Ramaswami, J., it was erroneously argued on behalf of defendants 1 to 3 that Exhibit B-7 is a gift deed. The donor, Shamsudeen has given and gifted item 3, the house property, under the same deed and therefore it has to be presumed that item 1 of the C schedule has also been gifted to the first defendant. The learned counsel presuming that Exhibit B-7 is a gift deed, argued that a valid gift has been granted to defendants 1 to 3 and therefore the plaintiff is not entitled to a share in item 1 of C schedule property. N.S. Ramaswami, J., on the basis of the arguments of the appellant’s counsel held that the document Exhibit B-7 is a gift in futuro and not a gift in presenti and therefore the said document with respect to item 1 is invalid. According to the learned Judge, the donor has clearly stated in Exhibit B-7 that as far as item 1 of C schedule is concerned after the donor’s lifetime, his daughter, the first defendant, should get the property and that too not the corpus but only usufruct and the corpus should be taken ultimately by the grandchildren who are defendants 2 and 3. The learned Judge held that trial Court was right in its conclusion that the gift is only in futuro and as such the donor did not intend to transfer any interest in the property in presenti With these observations, the learned Judge (N.S. Ramaswami, J.), dismissed the appeal. It is against the dismissal of A.S. No. 755 of 1969, the above Letters Patent Appeal has been preferred. 4. It is contended and argued before us by the counsel appearing for the appellants that the gift with respect to item 1 of C schedule property is a valid one and the plaintiff cannot claim a share in that property. We have gone through the document Exhibit B-7. In that document, the donor has stated that his eldest son, i.e., the plaintiff was not amicable with him and that in order to avoid disputes in future with reference to the settlor’s property after settlor’s death, the first defendant on account of the services rendered by her to the settlor, and also on account of her love and affection, will get certain properties. The document further mentions that the settlor would enjoy items 1 and 2 of the settlement deed for his life and after his life, the settlee (first defendant) would take item 1 (rice mill) and utilise for herself the income therefrom after meeting repair expenses, and that after the first defendant’s (settlee’s) life, defendants 2 and 3 would take the property absolutely- 5. On a fair reading of the settlement deed, it is very clear that what Shamsudeen intended to do with respect to item 1 was, that he wanted to take the income from this property for his life and he did not retain any portion of the corpus or any dominion, that is to say, he should enjoy the usufruct of this item of property, so long as he is alive and after his death, the property will go to the first defendant and after her death, it should go to defendants 2 and 3. Therefore, a reading of the document Exhibit B-7 with respect to item 1 evidences that a life estate has been created in favour of the first defendant and after the death of the first defendant the property will go to defendants 2 and 3. 6. Therefore, a reading of the document Exhibit B-7 with respect to item 1 evidences that a life estate has been created in favour of the first defendant and after the death of the first defendant the property will go to defendants 2 and 3. 6. The learned counsel before us has argued that if is a gift pure and simple and the same arguments was also advanced before N.S. Ramaswami, J., when he heard the appeal in the case. If the document is construed to be a gift with respect to item 1 then N.S. Ramaswami J., was perfectly justified in holding that it is a gift in futuro and therefore it is not valid. On a fair reading of the document Exhibit B-7 it is clear, as far as item 1 is concerned, it is not a gift but it is only a life estate created by the donor in favour of the first defendant, and after her death the property would go to defendants 2 and 3. The trial Court has, by misapprehension, thought that it is a gift and therefore held that possession was not given to the donee, namely, the first defendant and that Shamsudeen retains his right over the corpus and therefore it is not valid. As stated above, after going through the document it is clear that, as far as item 1 under the document is concerend a life estate is created and not a gift as alleged and contended by the first defendant- In this document, with respect to item 1, there is no descriptive clause resulting in divestiture of the property. The settlement deed, as far as item I in C schedule is concerned, explicistly mentions that Shamsudeen will enjoy the property so long as he is alive and after his death, the rice mill will be enjoyed by the first defendant and after her death it will go to defendants 2 and 3. 7. It is well established that in order to constitute a valid gift under the Mohamedan law, the three necessary elements which constitute such a gift are, a declaration of gift by the giver, the acceptance of the gift by the donee which acceptance may be expressed or may inferred by necessary implication and lastly delivery of possession of the subject-matter of the gift by the donor to the donee. But in the course of time certain exceptions have been engrafted in the matter of the upholding of a gift notwithstanding immediate delivery of possession of the subject-matter of the gift. One such exception is a case where the donor without reserving dominion over the corpus of the property or any share therein, stipulates only for a right to enjoy the income from the’ property during his lifetime or makes the gift subject to a condition that the donee shall pay the whole of the income from the property or the part thereof to a person of his choice during the lifetime of such a person. Though this appears to be an apparent exception to the generality of the rule embodying the three conditions which would make a valid gift, yet it is not really an exception. Reservation of a right to enjoy the income, though ordinarily called a life estate does not militate against the validity of the gift because the corpus of it is absolutely given over to a named individual and the condition whereby the income should be enjoyed either by the donor or his nominee does not detract from or violate the essence of a valid gift. If in a given illustration the subject-matter of the gift is sliced away by the donor, or the condition or restriction contemporaneously imposed by the donor is so obvious that one would understand the gift as taking away a portion of the corpus of the gift, then Mohamedan Law does not accept it as a valid gift. The reason is obvious. By imposing such a restriction as above, the entirety of the property which is the subject-matter of the gift is not given away but only a portion thereto. This is not possible to make it a valid gift. If however the restriction or the condition is such whereby a right to enjoy the income from the gifted property is contemplated, and whether such enjoyment is by the donor or by his nominee, it would not be tantamount to the taking away of a portion of the corpus of the property, but it is only a temporary right to enjoy the usufruct therefrom. 8. Keeping this position of law in mind, we have to see whether Exhibit B-7 with respect to item 1 is a life estate or a gift simpliciter. 8. Keeping this position of law in mind, we have to see whether Exhibit B-7 with respect to item 1 is a life estate or a gift simpliciter. The counsel for the appellants both before N.S. Ramaswami, J., and before us argued on a wrong misapprehension, that it is a gift and the Courts below, construing item 1 of C schedule as a gift have erroneously held that it is not binding on the plaintiff. The trial Court has taken the view that it is a gift and on the basis of that, it held that possession was not given to the donee and therefore, it violates one of the essential conditions of gift. As stated above, on going through the document Exhibit B-7 it is found that only a life estate is created in favour of the first defendant and not a gift. The trial Court has not applied its mind to this point and has erroneously considered this item of property as falling within the purview section 149 of Mulla’s Mahomedan Law. of With great respect, we disagree with the finding of N.S. Ramaswami, J., who held that it is a gift in future. In view of the above observations, we allow the Letters Patent Appeal and set aside the judgment in A.S. No. 755 of 1969 and also the decree in O.S. No. 38 of 1968 of the Sub-Court, Nagapattinam, as far as item I of C schedule property is concerned and confirm the decree of the trial Court in other respects. We direct the trial Court to construe, on the lines indicated above. We, therefore, remand this case to the trial Court for fresh disposal as far as item 1 of C schedule is concerned. Hence, we allow the appeal with costs.