JUDGMENT T. Chandrasekhara Menon, J. 1. Defendants 7 to 10 are the appellants. The suit was one for partition where the plaintiff claimed one seventh share of the suit properties. The properties belonged to one Mohammed Ummal. She executed a settlement deed Ext. A1, dated 15th April 1950 by which plaint items 1 to 9 were given to the 7th defendant and items 10 and 11 to the 8th defendant. The right to take usufructs from items 2 to 11 was reserved with the executant for life. Some 14 years thereafter, on 6th June 1964, 7th defendant and Mohammed Ummal executed a gift deed marked as Ext. A2 in the case in favour of the 9th defendant reserving the right to reside in the building and to take the usufructs from there during the life time of the executants. Mohammed Ummal died on 8th January 1966. Her husband had predeceased her. Plaintiff, and defendants 1 to 6 are the children of the brothers of Mohammed Ummal's father. 2. In the plaint it is alleged that Exts. A1 and A2 are vitiated by undue influence and fraud and further they have not taken effect; proceeding on the basis that the documents are void, the suit for partition has been filed. 3. In their defence, defendants 7 to 10 contended that the documents are perfectly valid, they had taken effect and are not liable to be declared void A contention was also taken up that the suit is barred by limitation. 4. While finding against the plea of undue influence and fraud, the Trial Court however found that Ext. A1 and A2 are void as far as items 6 to 11 are concerned. There was consequently a preliminary decree for partition of plaintiff's 1/7th share over items 6 to 11. The appeal preferred by defendants 7 to 10 against the decree was dismissed by the Sub Court. Defendants 7 to 10 have therefore come up in Second Appeal. 5. When the Second Appeal was admitted, this court found that the following substantial question of law arises for consideration: "Whether Exts. A1 and A2 are invalid for the reasons given by courts below." When the matter came up for final hearing, my learned brother P. C. Balakrishna Menon, J. referred the matter to the Division Bench. 5. When the Second Appeal was admitted, this court found that the following substantial question of law arises for consideration: "Whether Exts. A1 and A2 are invalid for the reasons given by courts below." When the matter came up for final hearing, my learned brother P. C. Balakrishna Menon, J. referred the matter to the Division Bench. The reference order reads as follows: "In view of the conflicting view expressed in the decisions in 1958 KLT 37 and AIR 1957 Kerala 150, this second appeal is referred to a Division Bench." 6. Before going into the question that arises for consideration in this appeal, we think it would be useful to go into the facts in more detail. The properties concerned originally belonged to one Mohammed Ummal, who died issue less on 8th January 1976. Her husband had predeceased her. She had 4 brothers, all of them died before her death. Plaintiff and defendants 1 to 2 are the sons of one Pakkir, one of the brothers of Mohammed Ummal's father. The third defendant is the son of another brother, Kathiruvappu. Defendants 4 and 5 are the sons of Meerasayu and 6th defendant is the son of Kunju. Meerasayu and Kunju are two other brothers of Mohammed Ummal's father. 7th defendant is the son of Kassimpillai who is the brother of the husband of Mohammed Ummal. 8th defendant is the wife of the 7th defendant and 9th defendant is the daughter of defendants 7 and 8. 10th defendant is the husband of 9th defendant. 7. Mohammed Ummal in conjunction with her husband on 15th April 1950 executed a gift deed whereby plaint items 1 to 9 were gifted to the 7th defendant and items 10 and 11 to the 8th defendant. A copy of that document as noted earlier is Ext. A1. The gift was with reservation by which the donor had the right to take usufructs of items 2 to 11 till her death. On 6th June 1964 the 7th defendant and deceased Mohammed Ummal executed another gift deed whereby items 2 to 9 were gifted to defendants 9 and 10 with certain reservations in favour of the donors. The plaintiff's case as regards that document is that the document has no legal validity and has not taken effect as such. The plaintiff claimed that he is entitled to 1/7th share of the properties. The plaintiff's case as regards that document is that the document has no legal validity and has not taken effect as such. The plaintiff claimed that he is entitled to 1/7th share of the properties. As noted earlier, defendants 7 to 10 sought to sustain the gift deeds and non suit the plaintiff on the ground that the plaintiff is not entitled for the partition and separate possession of 1/7th share in the plaint schedule properties. 8. The learned Munsiff found that the gift deeds are void to the extent of 1/7th right of the plaintiff over items 6 to 11, but he dismissed the suit with respect to plaint items 1 to 5. Aggrieved by this, defendants 7 to 10 filed appeal A. S. 135 of 1975 before the Sub Court. Plaintiff, to the extent his contentions were found against filed A. S.144 of 1975. In the appeal by defendants 7 to 10, it was contended that the finding of the learned Munsiff that the reservations in Exts. A1 and A2 are violative of the provisions of the Mohammedan Law is not sustainable. They also contended that in any case it should have been found that defendants 6 to 9 are exclusively entitled to the improvements effected in items 6 to 9 subsequent to 1950. The plaintiff in his appeal contended that the lower court should have found that under Exts. A1 and A2, possession was not handed over to the donees and donor was in possession and the gifts are therefore entirely void. It was also contended in that appeal that Mohammed Ummal was a pardanishan lady and Exts. A1 and A2 were executed without knowing its contents and out of undue influence. According to the plaintiff, the burden is on the defendants to prove that there was no undue influence and the document was valid. 9. The learned Subordinate judge after review of the evidences in the case and the law on the matter found that so far as items 2 to 9 in Ext. A1 which are gifted to the 7th defendant and items 10 and 11 in Ext. A1 which are gifted to the 8th defendant, the gift is void. But as far as item No. 1 gifted to the 7th defendant; Ext. A1 is valid. In respect of items 6 to 9 gifted to defendants 9 and 10 under Ext. A1 which are gifted to the 7th defendant and items 10 and 11 in Ext. A1 which are gifted to the 8th defendant, the gift is void. But as far as item No. 1 gifted to the 7th defendant; Ext. A1 is valid. In respect of items 6 to 9 gifted to defendants 9 and 10 under Ext. A2 the gift was held to be void. The court also confirmed the finding of the learned Munsiff that the plaintiff is not entitled to any relief as regards plaint items 1 to 5, but entitled only to 1/7 share in plaint item 6 to 11. On the question whether defendants 6 to 9 are entitled to improvements effected subsequent to 1950 the court held there was no pleading in the matter and no issues were raised and no evidence adduced. Therefore, the contentions could not be considered at all. In this view the judgment and decree of the learned Munsiff were confirmed and the appeals were dismissed. 10. In this Second Appeal by the aggrieved defendants (defendants 7 to 9), the following contentions are raised. It might be noted here that defendants 11 to 15 had supported the case of defendants 7 to 9, they being alienees of certain properties. The main contention of the appellants is that the courts below erred in their interpretation of Exts. A1 and A2. As per their contentions the essential distinction between reservation of life interest to take usufructs when an absolute gift of the corpus is made and the reservation of the right to be in possession has been lost sight of by both the lower courts. Reservation of the right to take usufructs by the donor during lifetime is quite consistent with delivery of possession. It is strongly urged that the stipulations in Exts. A1 and A2 do not derogate from the absolute dominion of the subject of gift. It is also pointed out that there is clear intention on the part of the donor to transfer possession and divest himself of all control of the properties gifted. 11. Before going into the questions raised in the appeal we may note here the details as regard the properties concerned. In the plaint there are 11 schedules. Item No. 1 is A schedule in Ext. A1 which is absolutely given to the donee on the date of gift with no reservations whatsoever. 11. Before going into the questions raised in the appeal we may note here the details as regard the properties concerned. In the plaint there are 11 schedules. Item No. 1 is A schedule in Ext. A1 which is absolutely given to the donee on the date of gift with no reservations whatsoever. B Schedule in Ext. A1 are plaint schedule items 2 to 9, C schedule in Ext. A1 are plaint schedule items 10 and 11. In Ext. A2 properties are described as A and B schedules. The properties taken in by Ext. A2 are those included in B schedule in Ext. A1 A schedule in Ext. A2 are plaint items 2 to 5, and B schedule in Ext. A2 are plaint items 6 to 9. Items 7, 8 and 9 of the plaint are buildings standing in item No. 6. 12. It will be useful to extract the relevant recital in the two documents concerned. In Ext. A1 what is stand is: xxx The relevant recital in Ext. A-2 is: "xxx 13. Under the Mohammedan Law, a declaration in a deed of gift that possession has been given binds the heirs of the donor. But such a declaration is not conclusive. From the donor's acknowledgement of having made a gift and delivered possession it may be presumed against the donor and persons claiming under him, that the gift was completed as acknowledged. We might note here what Sir Barnes Peacock spoke in Muhammed Mumtaz Ahmad v. Zubaida Jan (1889) ILR II All 460 (PC) wherein a deed of gift a muslim lady had declared that she had made the donee possessor of all properties given by the deed and that she had abandoned all connection with them and further the donee was to have complete control of every kind in respect thereof. The gift was to the daughter. The daughter's husband was the general Manager of both mother and daughter. Sir Barnes Peacock, observed that the daughter's husband, the manager would doubtless take care that the deed of gift should be carried into effect. It was held that sufficient possession was taken on behalf of the daughter to render the gift effectual. If possession was once taken and the deed of gift took effect, no sub sequent change of possession would invalidate it. It was held that sufficient possession was taken on behalf of the daughter to render the gift effectual. If possession was once taken and the deed of gift took effect, no sub sequent change of possession would invalidate it. The declaration in the deed that possession was transferred was taken as a declaration of fact which must be regarded as binding on the heirs of the donors. This principle was affirmed in Md. Sadiq Ali Khan v. Fakhr Jahan Begam AIR 1932 PC 13 . In Mohammed Abdul Ghani Khan v. Mt. Fakhr Jahan AIR 1922 PC 28, it was explained that in considering what is the Mohammedan Law on the subject of gifts, it has to be borne in mind that when the authoritative texts of Mohammedan Law were promulgated, there were not in contemplation of any one, any Transfer of Property Acts, any Registration Act, any Revenue Courts to record transfers of the possession of land, or any samindari 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. It was pointed out there that the object of 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 handing 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. Justice Vadakkel relying on certain observations in Tyabji's Muslim Law and Mulla's Principles of Mohammedan Law pointed out in K. P. Abdul Rahiman v. Kunhimohammad AIR 1975 Kerala 150 that the rigour of the rule that delivery of possession can be effected only by the donor physically departing from the property leaving nothing of his own there was gradually toned down in that it came to be recognised that in certain circumstances it is sufficient that the character or nature of the donor's possession changes by his intention to treat the property as that of the donee and he divests himself of his ownership. The Supreme Court itself has said in Kathessa Umma's Case AIR 1964 SC 275 that the Muhammedan Law of gifts, though strict could not be made up of unmeaning technicalities. Sulaiman, C. J. of the Allahabad High Court (as he then was) in Jamil v. Sheik Mohammed Zia AIR 1937 All 547 repelled the contention that the donor should have taken the donee to the spot and pointed out the land and informed the donee that possession was delivered. 14. In Kunju Ashia Beevi v. Kali Kochu Pillai 1958 KLT 37 Justice T. K. Joseph said that the declaration in the gift deed that possession was given by itself is insufficient to prove delivery of possession and the exception to the rule regarding delivery of possession in the case of a gift by the father or guardian to his child or ward as the case may be cannot be applied to a case where the donor was only the mother of the donees. It was said that the onus is on the donees to prove that possession was given. It might be noted that in that case there was concurrent finding that possession was not given to the donees or to their guardian, and what was contended was that the declaration in the document that possession was given by itself would indicate delivery of possession. The same learned Judge speaking for a division Bench in Asha Ummal v. Vasanthi 1964 KLT 844 observed that when the donor and the donee are residing together the formal entry by the donee is not necessary to make the gift complete. In such a case the gift may be completed by some overt act by the donor indicating a clear intention on his part to transfer possession and to divest himself of all control over the subject of gift. 15. In Mulla's Principles on Mohammedan Law, it is pointed out that it is essential to the validity of a gift that there should be a delivery of such possession as the subject of the gift is susceptible and the taking of possession of the subject matter of the gift by the donee either actually or constructively is necessary to complete a gift as observed by the Judicial committee in Mohammed Abdul Ghani v. Mt. Fakhr Jahan AIR 1922 PC 281 16. Fakhr Jahan AIR 1922 PC 281 16. But as noted there the delivery of possession of a gift may be actual or constructive, only thing is that the donor must divest himself of his possession to complete the gift. The Privy Council in the case just now refer red to, has concluded that where a donor makes a gift of the corpus of a property, but reserves the usufructs to himself and continues a physical possession of the property, the payment by the donee of Government revenue after the date of the gift in respect of the property amounts to constructive possession of the property on the part of the donee and the gift is completed by such possession. As the Pakistan Court has said, referred in Mulla's Principles of Mohammedan Law, Zeena Bi v. Zaman Mehdi (1956) P. hah 760 constructive possession i: a question of fact and no judicial authority can bind the court in coming to its own conclusions. (Referred to by Mulla - Page 158 - S.150 - 18th Edition). A declaration in a deed of gift that possession has been given binds the heirs of the donor but is not conclusive of possession having been handed over as noted earlier. 17. The Mohammedan Law relating to gifts has been clearly put by Justice Din Mohammed in Nazir Din v. Mohammed Shah AIR 1936 Lah 92 at 95, 96 in the following words: "The Courts in this country have given effect rather to the spirit of the rule than to its letter and have upheld gifts in all cases in which the intention to give on the part of the donor had been expressed in most unequivocal terms and had further been attended by all honest efforts on his part to complete the gift by divesting him self of the control over the property in such a matter as would clearly imply his divestiture in the eye of the law of the land." "The raison D'etre of this rule was the avoidance of gifts that were vague indefinite or incomplete and the only test that should be applied in such cases whether the gift in question is open to any of these objections; or in other words whether the donor has still reserved to himself a loop hole of escape or not." 18. As has been pointed out in the Travancore - Cochin case Maitheen Beevi Umma v. Varkey AIR 1956 TC 268 at 269 and 270 and in the Kerala Case Muhammad Pathumma Kadija Beevi v. Maria Ummal Mohammad Pathummal AIR 1958 Ker. 264 and 265 that while it is true that according to principles of Mohammedan Law a gift of immovable properties of which the donor is in actual possession is not complete unless the donee is given possession, the mere fact the donor reserves the right to take usufruct during his life time does not mean that possession is not given to the donees. Such a reservation is quite consistent with delivery of possession of the properties to the donees. A condition in a deed of gift that the whole of the usufruct would be taken by the donor during his life time would not make the gift invalid if possession of the subject matter of the gift was given to the donees. Mohammad Abdul Ghani v. Mt. Fakhr Jahan 3 is authority for the proposition. 19. When we look into Exts. A1 and A2 on the basis of the above principles it is difficult to escape from the conclusion that the gifts have taken effect. In both the documents there is specific recital that the donee may enter into possession of the property. In Ext. A1 it is stated: "xxx" In Ext. A-2 also there is similar recital: xxx The real effect of the document is that possession has given, the gifts taken effect, but the donors are allowed to take usufructs and reside in the house in the property. The fact that in Ext. A1 the right is given to the donor to encumber the property to a certain extent will not take away the validity of the gift. It might be that the limited right given to the donor to encumber the property may be invalid. 20. A document embodying a declaration that the property gifted has been delivered, if given and accepted by the donee is tantamount to accepting delivery of the gifted property. When a gift is made subject to a condition which derogates from the completeness of the grant, the condition is void and the gift will take effect as if no conditions were attached to it. (See Mulla's Principles of Mohammedan Law 18th Edition Page 175). Some illustrations are given at page 176. When a gift is made subject to a condition which derogates from the completeness of the grant, the condition is void and the gift will take effect as if no conditions were attached to it. (See Mulla's Principles of Mohammedan Law 18th Edition Page 175). Some illustrations are given at page 176. If a sunni Muhammadan says "this mansion is to thee oomres (for thy life and when thou art dead it reverts to me", the gift is lawful and the condition is void: Baillie, 517; Hedaya 489. The result is that the donee takes an absolute interest in the mansion, and not only a life interest. This is the legal effect of the gift, (b) A makes a gift of Government promissory notes to B, on condition that B should return a fourth part of the notes to A after a month. The condition is void and B takes an absolute interest in the notes. Here the condition relates to the return of part of the corpus. In the case of a gift, a restraint against alienation, whether absolute or partial is void. A makes a gift of certain properties to B. It is provided by the deed of gift that B shall not transfer the property. The restraint against alienation is void and B takes the property absolutely. 21. Therefore, if in this case the gift has taken effect, then it may be that the condition imposed that the donor can encumber the property may be bad. For the decision of this case, there is no necessity to examine that aspect of the matter. In this view, we allow the Second Appeal. In the circumstances of the case, there will be no order as to costs.