G. N. SABHAHIT, J. ( 1 ) THIS appeal by the plaintiffs is directed against the Judgment and decree dt. 28-6-1975 passed by the District judge, Bijapur, in RA. No. 3 of 1974, on his file allowing the appeal, on setting aside the judgment and decree dt. 13-12-1973 passed by the P1. Civil Judge, Bijapur, in OS. No. 17 of 1971, on his file, decreeing the suit of the plaintiffs as prayed for. ( 2 ) PLAINTIFFS instituted a suit for declaration that defendant-1 has only a life interest in the suit lands and that the suit sale is not binding on the plaintiffs after the death of defendant-1 or, in the alternative, for a declaration that defendant-1 is only a 'benamidar ' of the suit lands and that the suit sale is not binding on the plaintiffs' right, title or interest in the suit lands. ( 3 ) THE brief facts which give rise to the suit are these : the plaintiffs and defendants 3 and 4 are brothers. Defendant -2 is their sister. Defendant-1 is the mother of the plaintiffs and the defendants. The father of the plaintiffs had another wife, by name Chandbi from whom he had a son by name Lalsab. Lalsab, even during the life time of his father, took some lands and other properties and relinquished all his rights to succeed to his father. This was in or about the year 1941. It was a partition, of his share, from the rest. The present suit lands are block No. 613 (Old Sy. No. 547) and block No. 575 (Old Sy. No. 544), both of mulwad, Tlk. : Basavanabagewadi. These lands were purchased by the deceased father of the plaintiffs and husband of defendant-1 in the name of defendant-1, respectively in the year 1923 and 1940. Though these lands were in the name of defendant-1, it was 'benami' for the family, the real owner being the father of the plaintiffs. Plaintiffs' father also purchased other lands similarly in the name of his wife (defendant-1) - some of which were given to the share of the plaintiffs step brother Lalsab. Even other properties are acquired after Lalsab took away his share, by the family. The father of the plaintiffs expired about 27 (amended as 3') years prior to the institution of the suit in the year 1971. Even other properties are acquired after Lalsab took away his share, by the family. The father of the plaintiffs expired about 27 (amended as 3') years prior to the institution of the suit in the year 1971. According to the plaintiffs, about three years prior to the institution of the suit, the parties to the suit effected a partition-cum-family arrangement between themselves in which the two suit lands were also put into the hotchpot. In the said partition, the suit lands which were standing in the name of defendant-1 were given to defendant-1 for 'potgi to be enjoyed till her death and the same were to be divided between the plaintiffs and defendants 3 and 4 after ner death. Defendant-1 was given only lite interest in, the suit lands and she was not the full owner. After the partition-cum-family arrangement a 'yadi' was also prepared reciting the terms thereof to which defendant-1 was also a consenting party, she having affixed her thumb impression on the same. Thereafter, however, the dispute arose between, plaintiffs on the one hand and the defendants on the other. All the defendants made common cause against the, plaintiffs in order to harass and cause loss to the plaintiffs. In furtherance of that, taking advantage of the fact that the suit lands were standing in the name of defendant-1, she passed a, registered sale deed dt. 20-11-1970 in respect of the suit lands in favour of defendant- 2, her daughter, for an alleged consideration of Rs, 12,000. The said sale deed, according to the plaintiffs, was bogus and colourable. No consideration passed. They further contended "that defendant-1 having been given only a life interest in the suit lands, she had no power or authority to pass such a sale deed in favour of Deft. 2 her daughter. The sale deed was void and not binding on the plaintiffs. They alternatively, submitted that if the court were to hold that there was no partition, as stated above, in the year 1965, defendant-1, being a 'benamidar', as stated above, the sale in question was not binding on the plaintiffs and, hence, they instituted the suit on 23-3-1971 before the Prl. Civil Judge, bijapur, in OS. No. 17 of 1971 with the prayers, as stated above, for a declaration of their title and, alternatively, for possession of their 7/22nd share. Civil Judge, bijapur, in OS. No. 17 of 1971 with the prayers, as stated above, for a declaration of their title and, alternatively, for possession of their 7/22nd share. ( 4 ) THE suit was resisted by defendants 1 and 2 contending that the two suit properties were allotted to the share of defendant-1 and there was no concept of life estate under the Muhammadan law and that she had full rights over it and the sale was valid and legal. Defendant-3 filed his written statement supporting the plain averments. ( 5 ) THE trial Court raised the followig issues as arising from the pleadings : * * * ( 6 ) THE trial Court, appreciating the evidence on record, answered the issues as under : issue No. 1 : Yes, Issue No. 2: Yes, issue No 3: Yes- ISsue No. 1: Yes; issue Mo. 5 : No; Issue No. 6 : Yes, Issue no. 7: No Issue No. 8: Does not survive, issue No. 9: No; Issue No. 10 Yes; issue No. 11 : No ; Issue No. 12 : No ; issue No. 13: Yes and Issue No. 14: does not survive and, in that view, the trial court passed the final order as under. "the. suit of the plaintiffs is decreed, it is hereby declared that the deceased defendant-1 had only life interest in the suit lands and that the suit sale in favour of defendant-2 by the deceased defendant-1 in respect of the suit lands is not binding on the plaintifis In the circumstainces of the case, I pass no order as to costs. Aggrieved by the said judgment and decree, defendants 1 and 2 went up in appeal before the District Judge, bijapur, as stated above, in EA. No. 3 of 1974. The learned District Judge, on hearing the arguments addressed before him, in the course of his judgment, raised the following points as arising for his consideration in the appeal. (1) Whether defendant-1 was only a 'benarnidar' in respect of the suit lands and had no right, title and interest as owner? (2) Whether the sale deed executed by her is not binding on the plaintiffs and defendants 2 to 4 ? (3) 'whether the plaintiffs were entitled to the reliefs prayed for ? ( 7 ) THE learned District Judge answered point No. 1 in the affirmative. (2) Whether the sale deed executed by her is not binding on the plaintiffs and defendants 2 to 4 ? (3) 'whether the plaintiffs were entitled to the reliefs prayed for ? ( 7 ) THE learned District Judge answered point No. 1 in the affirmative. He held that defendant-1 was the real owner. In that view, he held that the sale deed executed by her in favour of her daughter was valid and, in that view, he allowed the appeal, reversed the judgment and decree of the trial court and dismissed the suit of the plaintiffs. Aggrieved by the same, tne plaintiffs have come up with the above second appeal before this Court. ( 8 ) THE learned Advocate appearing for the appellants strenuously urged before me that what was given to defendant-1 in the partition-cum-family arrangement, was only a life interest for her maintenance and that she also signed the 'vardi' given to that behalf giving her consent to it. Therefore, he urged before me that defendant-1 had only life interest and nothing more. In that view, he submitted that the sale deed executed by her as per Ext. D-1 in favour of defendant-2 did not confer any right on her beyond the life time of defendant-1. As per the terms of the partition-cum-family arrangement, the suit properties were to be divided among the plaintiffs and the other sons arrayed as defendants 3 and 4 in the suit. Hence, he submitted that the plaintiffs were entitled for the declaration sought. ( 9 ) AS against this, the learned Advocate appearing for the respondents/defendants argued supporting the final order of the learned District Judge, though for different reasons. He submitted that the concept of life interest was something unknown to Muhammadan law and since what was done in 1968 was a regular partition and the suit lands were allotted to the share of defendant-1, she got the properties absolutely. The clog that she could enjoy the properties for life only is void under the Muhammadan Law. Hence, he submitted that the sale deed ext. D-1 executed by defendant-1 in favour of defendant-2 was legal and valid and that the plaintiffs had no right to challenge the same. ( 10 ) THE points, therefore, that arise for my consideration in this appeal are: (1) Whether the concept of life estate applies to Muslims under their personal law ? D-1 executed by defendant-1 in favour of defendant-2 was legal and valid and that the plaintiffs had no right to challenge the same. ( 10 ) THE points, therefore, that arise for my consideration in this appeal are: (1) Whether the concept of life estate applies to Muslims under their personal law ? (2) Whether under the partition done in 1968 between the plaintiffs and the defendants, the clog put on the share of the mother that she should enjoy the properties for her life only is void in law ? (3) Whether the judgment and decree of the learned District Judge require interference? ( 11 ) MULLA, in his 'principles of mahomedan law' 18th Edn. at Sec. 55, speaking about life estate and vested remainder states thus :" (1) Sunni Law: The Judicial Committee in Humeeda v. Budlun (1872) 17 W. R. 525 observed that the creation of (such) a life estate does not seem to be consistent with Mahomedar usage and there ought to be very clear proof of, so unusual a transaction' and in Abdul Gafur vs. Nizamuddin (1892) 19 I. A. 170 referred to 'liferents' as 'a kind of estate which does not appear to be known to Mahomedan law'. The difficulty arises out of the Mahomedan law of gift and does not appear to extend beyond cases of pure 'hiba' whether inter vivos or by will. . . . . " ( 12 ) FYZEE, in his 'outlines of Muhammadan law', 4th Edn. at Sec. 47 deals with life interests under the muhammadan Law. He states : 'estate is a term of art in English law and has a definite meaning in its technical sense. A 'life estate' implies the transfer of the corpus of the property to a certain person with certain limitations as to its use and alienation in this technical sense of the term, a life estate is now declared by the Privy Council (Sardar Nawazish Ali Khan's case) to be unknown to Muhammadan law as administered in India ; but life interests are well known and can be created in the following ways : 1. By Family Wakf's (Wakf alalawlad) ; ii. Wills (wasiyyat bil-manafi') til the rule in Nawab Unrjad Ali khans Case (1867) 11 M. I A 517; cases 337 ; iv. By Family Wakf's (Wakf alalawlad) ; ii. Wills (wasiyyat bil-manafi') til the rule in Nawab Unrjad Ali khans Case (1867) 11 M. I A 517; cases 337 ; iv. the law of gifts as explained in amjad Khan vs. Ashraf Khan (1929) 56 I. A. 213 ; Cases. 342 ; v. Sarcku Nuwazish Ali Khan's case (1918) 75 I A. 62, Cases, 342 and vi. Anjuman Ara Begum vs. Nawab Asif' Kadar (1955) 2 Cal. 109; cases 357 : and vii. Family settlements (tawrith ). " ( 13 ) WE are concerned in this case with the family settlement which is, dealt, with by him at page 264. He states under the rubric 'family Settlements' thus:"where there is a bona fide dispute between certain parties, they may arrive at a compromise, and such an arrangement may be in the nature of a tawrith ; but a later decision has held that a regular dispute is unnecessary, provided that the parties have arrived at a settlement bona fide to avoid disputes in future. The arrangement contained in the compromise would be called by the Mahomedan Lawyers 'a tauris', or 'making "some stranger an heir', and cannot be regarded as creating a present or vested interest. In muhammad Raza -vs- Abbas Bandi bibi Sir George Lowndes said, 'it must be remembered in this connection that family arrangements are specially favoured in, courts of equity. A family arrangement is an agreement settling disputes between the parties and a transaction for a consideration, and there is no "doubt whatever that life interest may be created by such an agreement. "he relies on Commentaries on Muslim law by Ameer Ali, II, 36-8. For illustration of family arrangements he refers to Tyabji, Section 382, and mulla, Section 55 (2) the relinquishment of a Contingent right of inheritance by a Muslim heir is generally void under the Muhammadan Law, but if it is supported by consideration, and forms part of a valid family settlement, it is perfectly valid. For illustration of family arrangements he refers to Tyabji, Section 382, and mulla, Section 55 (2) the relinquishment of a Contingent right of inheritance by a Muslim heir is generally void under the Muhammadan Law, but if it is supported by consideration, and forms part of a valid family settlement, it is perfectly valid. This proposition findr further support in the Division Bench ruling rendered by the High Court of Travancore-Cochin in the case, Kochunm kochu -vs- Kunju Piliai ( 14 ) MULLA, in Sec. 55 (2) of the aforesaid book, speaking about family settlement states : a life-estate may be created by an agreement in the nature oi a family settlement, whether such agreement is preceded by litigation or not, but 'the creation of such a life estate does not seem to be constent with Mohamedan usage, and there ought to be very clear proof of so unusual a transaction' Humeeda -vs- Budlun (1872) 17 W. R. 525. Such an agreement is from its very nature, a transaction for a conside ration and it must be distinguished from a pure 'hiba' or gift mentioned in sub-sec. (1) above. Umjad Ali khan v. Muhumdee Begum (1867) 11 M. I. A. 5iv at 548; Khwajoh solernan -vs- Nawab Sir Salimulla (1922) 49 I. A. 153, 49 Cal. 820, 69 i. C. 138, (22) A. PC. 107; Jagadish narain -vs- Bande Ali Main (1939) 20 p. L T. 328, 183 I. C. 467, (39) A. P. 406. ( 15 ) WHAT becomes clear is that under the Muhammadan Law, an heir cannot relinquish even his contingent right unless for consideration. ( 16 ) IT is not in dispute in the instant case that defendant-1, being the mother, claimed her own share during the partition among her sons and herself in the year 1968. That being so, what is allotted to defendant-1 in the partition is her share being the suit properties. It is not merely the enjoyment of the usufruct. Hence,, any condition put that she has to relinquish her share beyond her life time becomes void for she has not done so for consideration. That being so, what is allotted to defendant-1 in the partition is her share being the suit properties. It is not merely the enjoyment of the usufruct. Hence,, any condition put that she has to relinquish her share beyond her life time becomes void for she has not done so for consideration. ( 17 ) IN the case, Kochunni Kochu Muhammed and Another -vs- Kunju pillai Muhammed and Others (1) also, reviewing the case law on the point, both English and Indian, it is clearly laid down that a Muhammadan sharer cannot relinquish the share beyond a particular period unless for consideration. Therefore, it becomes established that if an agreement limits a share to life time, the limiting clause would become void, it being unknown to Muhammadan Law and the sharer gets the share absolutely. ( 18 ) THERE is no question of distinguishing the corpus from the usufruct in this case because admittedly in the year 1968 the partition of the properties took place and the suit properties were allotted to the share of defendant-1 a memo filed by defendant-1 is at Ex. P-7. That makes the position clear that what was done was a partition. The learnedi District Judge was clearly in error in thinking that the Memo was the partition deed itself. It is clearly stated therein that the partition had already taken place and the memo was subsequently prepared. That is admissible in evidence and it requires no registration. That being so, I have no hesitation to hold that the suit properties were allotted to the share of defendant-1 in the partition and she got the properties towards her share as her absolute properties. Hence, she could alienate the properties in favour of defendant-2, her daughter. In the circumstances, the plaintiffs have no right to challenge the sale or ask for partition in the suit properties. The final order of the learned District judge, allowing the appeal and setting aside the judgment and decree of the trial court decreeing the suit of the plaintiffs, is perfectly valid though for different reasons discussed above. ( 19 ) TN the result, therefore, the present appeal fails and is dismissed. Since it involves questions of law, there shall be no order as to costs of this appeal. --- *** --- .