JUDGMENT S.B. Sinha, J. There two first appeals interalia involve an interesting question of law as to whether grant of a life estate amongst the mohammedans is permissible in law? 2. First Appeal No. 223 of 1977 (R) arises out of a judgment and a preliminary decree dated 29th July, 1977 passed by Sri Victor Topno in Partition Suit No. 35 of 1947, whereby and where under the said learned court decreed a suit for partition filed on behalf of the plaintiff-respondents declaring his four annas share in the suit properties and further directing preparation of a separate Takhta in respect there of by appointment of a survey knowing Pleader Commissioner. 3. First Appeal No. 35 of 1987 (R) arises out of a judgment and final decree dated 19th January, 1987 passed by Sri SN Choudhary, Subordinate Judge, Hazaribagh in the aforementioned petition suit no. 35 of 1974. 4. The basic facts of the case are not much in dispute. It is, therefore necessary to notice the admitted facts. 5. The properties in suit belonged to one Hazi Munahi Naziruddin. The said Hazi Munshi Naziruddin has two wives viz Bibi Alimanalias Bibi Kalsum and Bibi Saira. The plaintiff and the defendant no. 6 are the heirs of Bibi Saira. Admittedly Bibi Aliman died in the year 1947 6. In the year 1958 the aforementioned Hazi Munshi Naziruddin executed a Hinhayati deed in favour of his second wife Bibi Saira. The said Hinhayati deed was marked Exhibit before the learned trial court Hazi Munshi Naziruddin died in the year 1960. 7. Bibi Saira died in the year 1972, Under the Mohammedan Law Bibi Saira would have inherited 4 annas interest in the properties left by Hazi Munshi Naziruddin. 8. It is admitted b y the plaintiff that the appellant who is son of Ashique (brother of Naziruddin) being his (Naziruddin) heir would inherit to the extent of twelve annas share in the properties. 9. The aforementioned facts are admitted. 10. According to the plaintiff, upon the death of Bibi Saira, the plaintiff (Murad Ali) and defendant No. 6 (Masum Ali) allegedly inherited her four annas interest in the suit property as heir of the aforementioned Bibi Saira. Allegedly by an unregistered agreement dated 22-11-1973 Masum Ali transferred all his right, title and interested in favour of the plaintiff respondent no. 1. Allegedly by an unregistered agreement dated 22-11-1973 Masum Ali transferred all his right, title and interested in favour of the plaintiff respondent no. 1. The said unregistered agreement dated 22-11-1973 was marked as Exhibit 1. 11. The plaintiff further case is that the said Hinhayati deed dated 8-8-1958 (Ext. D) was not given effect to and in any event Bibi Saira being the done under the said deed did not accept the same and as such succession to the property in question open upon the death of Naziruddin and Bibi Saira, out of his property whereas defendant no. 1 appellant inherited to the extent of twelve annas. It is the further case of the plaintiff and defendant no. 6 being her brother son inherited her interest. The plaintiff has further contended that the said purported Hinayati deed dated 8-8-1958, if found to be valid cannot be construed to be a life grant and by reason thereof Bibi Saira had become absolute owner in respect of the property in suit as thereby Hazi Munshi Naziruddin made an absolute gift of the suit properties to his wife and thus the condition attached there to which are derogatory to the an absolute grant, are void. 12. On the other hand, the case an made out in the written statement filed on behalf of the defendant appellant no. 1 is that the aforementioned Hinhayati deed was given effect to and in terms of the said agreement Bibi Saira was to have a life interest in the property and upon her death in terms there of the same devolved upon him absolutely, and in this view of the matter, the plaintiff or the defendants no. 6 did not derive any right title the interest there is an heir of the aforementioned Bibi Saira or otherwise. 13. It is on record that during life time to aforementioned Bibi Saira various suits were instituted by or against Bibi Saira and the appellant No. 1. 14. In one of the aforementioned suits, namely, Title Suit No. 10 of 1963 the appellants admitted that the aforementioned Hinhayati deed dated 8-8-1958 was not given effect to. The plaint of the aforementioned Title Suit No. 10 of 1963 has been marked as Exhibit 1/A. 15. In is also admitted that in the said suit an application for amendment of plaint was filed. The plaint of the aforementioned Title Suit No. 10 of 1963 has been marked as Exhibit 1/A. 15. In is also admitted that in the said suit an application for amendment of plaint was filed. The said application for amendment was marked as Exhibit E. It is admitted that the aforementioned prayer for amendment of the plaint was rejected. Against the said order a Civil Revision application was filed in this court and the said Civil Revision application was also dismissed. 16. It further appears that during the pendency of the said suit being Title Suit No. 10 of 1963, an agreement dated 14-7-1970 (Ext. F) was entered into by and between Bibi Saira and appellant in terms whereof twelve annas of rent collected from the tenants occupying the suit premises were to be paid to the appellants and rent was to be appropriated by Bibi Saira herself. It is also admitted that both Bibi Saira and the appellant executed a registered deed of sale in favour of one Santoshi Kumari for a sum of Rs. 12,000/- being the house property in holding no. 251 and 263 of plot no. 877. The said deed of sale was marked as Exhibit 3 before the trial court. It further appears that the appellant get a notice served through his Advocate Mr. Tarapado Banerjee upon a tenant purported to be under section 106 of the Transfer of property Act. Wherein also Bibi Saira’s interested to the extent of four annas was admitted by Abdul Mannan. The said notice was marked as Exhibit 2/8. It has further been brought on record that in one of the suit being Title Suit No. 63 of 1971 upon the death of Bibi Saira the plaintiff and defendant No. 6 were substituted in place of Mosst. Bibi Saira. The same is contained in Exhibition 5/C. From Exhibit 7/C ans Exhibit 7/D i.e. the order sheets of Title Suit No. 10 of 1963 dated 8-1-1968, and 20th June, 1968, it appears that Abdul Mannan filed an application for time on the ground that the parties have entered into compromise (Ext. 7/C) and any an application dated 16-7-1968 it was contended that although the compromise has been entered into by and between the parties to that suit but no Takhtabardi could had thence not yet been completed. The said petition dated 16-7-1968 is contained in Exhibit 5/C. 17. 7/C) and any an application dated 16-7-1968 it was contended that although the compromise has been entered into by and between the parties to that suit but no Takhtabardi could had thence not yet been completed. The said petition dated 16-7-1968 is contained in Exhibit 5/C. 17. Before proceeding further, it may be mentioned that the aforementioned Hinhayati deed (Ext. D) does not contain plot No. 1764 and plot No. 854. It is admitted that plot No. 1764 was sold and purchased by the wife of defendant appellant No. 1 in an auction sale held in an execution of a decree passed in a suit filed by the Commissioner of Hazaribagh Municipality foe arrears of rent. In the said auction, sale the aforementioned property was purchased by the defendant no. 2 So far as plat No. 854 is concerned the same is also claimed by defendant no. 2. 18. If further appears that apart from plot No. 1764 which has purchased by defendant no. 1, plot no. 1767 and 774 B were also subject matter of an auction sale. The said property in auction was purchased in auction by defendant no. 1 who letter on sold properties to the defendant no. 2. It also appears that plot no. 1046 was sold by defendant no. 1 to defendant nos. 3 to 5 have preferred any appeal although the judgment and decree passed by the learned trial court cover all these plots. 19. The learned trial court framed eight issues which are as follow :- “(i) Has the plaintiff any cause of action for the suit? (ii) It the suit maintainable as framed ? (iii) It the suit barred by section 34 of the S.R. Act, ? (iv) It the suit property valued and court fee paid is sufficient ? (v) It the suit bad for defect of the parties ? (vi) Has the plaintiff any right share if interest in the properties of Hazi Munshi Naziruddin ? (vii) To what relief if any is the plaintiff entitled ? 20. In the instant case the issue Nos. 6 and 7 as referred to herein before are material for the purpose of consideration by the Court as no contention has been advanced with regard to the other issues. 21. Mr. (vii) To what relief if any is the plaintiff entitled ? 20. In the instant case the issue Nos. 6 and 7 as referred to herein before are material for the purpose of consideration by the Court as no contention has been advanced with regard to the other issues. 21. Mr. Debi Prasad, the learned counsel appearing on behalf of the appellant firstly submitted that upon a proper construction of the Hinhayati deed dated 8-8-1958 (Ext. D) it would appear that thereby Naziruddin merely granted a life interest to his wife Bibi Saira only with regard to the usufruct of the property in question and thereby the corpus in the property did not pass to her. 22. According to the learned counsel such an arrangement is valid and has been well recognized in Mohammedan Law. The learned counsel submitted that in view of the fact that after the death of Bibi Saira the reminder interested devolved upon the appellant and as such the plaintiff suit was not maintainable. He further submitted that although in Title Suit No. 10 of 1963 the appellant contended in his plaint that the aforementioned Hinhayati deed (Ext. D) was not acted upon the appellant as a subsequent stage of the said suit having filed an application for amendment and thereby with drawing the said statement he would be deemed to have withdraw the admission made by him, or must be held to have retiled from the said previous admission despite the fact that the aforementioned application for amendment of the plaint was rejected by the trial Court as also by this Court in Civil Revision. 23. The learned counsel further submitted that if in fact the aforementioned Hinhayati deed (Ext. D) was accepted by Bibi Saira and was acted upon by the parties thereto the same being a valid one in law upon death a Bibi Saira the properties would revert to the appellant in term of the covenants contained therein. In this connection the learned counsel has draw my attention to the application for mutation filed by Naziruddin on 16-6-1959 which id Exhibit B/1 and another application filed by Bibi Saira on 29-7-1959 (Ext. B/2) as also an application for mutation by Bibi Saira herself (Ext. 8). 24. In this connection the learned counsel has draw my attention to the application for mutation filed by Naziruddin on 16-6-1959 which id Exhibit B/1 and another application filed by Bibi Saira on 29-7-1959 (Ext. B/2) as also an application for mutation by Bibi Saira herself (Ext. 8). 24. He further drew my attention to a letter dated 27-5-1959 addressed by Bibi Saira to the Chairman of Municipality Hazaribagh counsel has further draw my attention to the agreement dated 14-7-1970 (Ext. F) in terms whereof the deceased Bibi Saira become entitled to the rental to the extent of four annas share only. A this juncture it may be noticed that the learned counsel for the respondent has criticized the aforementioned documents to a forged and fabricated one. The learned counsel further has draw my attention to the oral evidence of the appellant in this connection who examined himself as D.W. 10 and in particularly he draw my attention to paragraphs 2, 8, 21 and 23 of his deposition. 25. On the other hand, Mr. N.K. Prasad, the learned counsel appearing on behalf for the plaintiff respondents firstly submitted that the appeal is not maintainable in respect of plot Nos. 1767, 1764, 774 B and 1046 as the appellant admittedly does not have any subsisting interest in respect thereof and had either sold the properties to the defendant no. 2 and defendant no. 3 to 5 or defendant No. 2 purchased the same in an auction sale. 26. The learned counsel submitted that as no appeal has been preferred by defendant nos. 2 to 5, this appeal must be dismissed so for as the aforementioned plots are concerned. 27. The learned counsel also submitted that the aforementioned Hinhayati deed dated 8-8-1958 (Ext. D) should be construed in such a manner so as to held that thereby Nizaruddin gifted the corpus of the properties to Bibi Saira for her life. According to the learned counsel that if the said deed of gift is valid then the condition restricting the grant of absolute right in favour of the done would be invalid an in this view of the matter the purported Hinhayati deed must be construed to be a deed of gift itself conveying absolute interest in the property by Naziruddin in favour of Bibi Saira. The learned counsel in the alternative submitted that even if it be held that by reason of the aforementioned Hinhayati deed (Ext. D) merely the usufruct of the property was conveyed to Bibi Saira in such un event the corpus of the property having been retained by the donor i.e. Naziruddin on his death the succession would open where upon also Bibi Saira would inherit four annas interest in the properties left by Naziruddin. He further submitted that in any event the said purported Hinhayati deed being not in respect of plot Nos. 854 and 1674, the suit for petition was maintainable in respect thereof. 28. The learned counsel also submitted that in the facts and the circumstance of this case the conduct of the parties particularly the admission of the appellant himself in the plaint filed by him in Title Suit No. 10 of 1963 as also in the notice issued under his instruction by Shree Tarapado Banerjee and other conducts of the appellant as evidenced by other various documents would conclusively proper that the said Hinhayati deed was not at all acted upon, The learned counsel in this connection has laid strong emphasis on a deed of sale dated 10-7-1970, where by and where under Abdul Mannan and Bibi Saira jointly executed a deed of sale in favour of one Santoshi Devi. The learned counsel on this basis contended that there cannot be any doubt that during the pendency of this aforementioned Title Suit No. 10 of 1963, the parties entered into a compromise as a result whereof the appellant admitted and acknowledge title of Bibi Saira to the extent of four annas interest of the property left by Naziruddin and in this view of the matter it does not lie in the mouth of the appellant now to contend that the plaintiff and defendant no. 6 did not inherit the four annas interest in the properties of Naziruddin and the said properties reverted to the appellant upon death of Bibi Saira in terms of the said purported Hinhayati deed. 29. In view of the rival contentions of the parties, as noticed herein before the following question would arise for consideration herein :- (i) Whether by virtue of Hinhayati deed dated 8-8-1958 (Ext. D) the right of usufruct in the property only or the corpus thereof was conveyed of Bibi Saira by Naziruddin ? 29. In view of the rival contentions of the parties, as noticed herein before the following question would arise for consideration herein :- (i) Whether by virtue of Hinhayati deed dated 8-8-1958 (Ext. D) the right of usufruct in the property only or the corpus thereof was conveyed of Bibi Saira by Naziruddin ? (ii) Whether the Hinhayati deed (Ext. D) id valid in law ? (iii) Whether the appellant in various litigation and being party to various document as referred to herein before having admitted that the said Hinhayati deed was not acted upon the death of Naziruddin inherited four annas interest in the property he is estopped and precluded from contending that Bibi Saira did not inherit four annas interest in the properties left by Naziruddin ? (iv) Whether the appeal by the appellant in respect of plot Nos. 854, 1764, 1767, 7748 and 1046 is not maintainable ? Re. question Nos. 1 and 2. 30. The answer to these questions would primarily depend upon the construction of the purported Hinhayati deed dated 8-8-1958 (Ext. D). 31. It has been admitted at the bar that by reason of the said purported instrument, Hazi Munshi Naziruddin created a life interest in favour of his wife Bibi Saira as would be evident from the discussions made herein before. In view of the decision of the judicial Committee and various other decision of different High Court it must be held that a gift conferring the corpus of the property creating life interest is valid but the condition attached thereto are void where as a life interest can be created in respect of usufruct of the property i.e. without transferring the corpus of the property to the donee. 32. Mr. Debi Prasad the learned counsel appearing on behalf of the appellant has taken me though various terms, conditions and covenant of the said deed and submitted that from a perusal thereof it would appear that thereby merely the usufruct of the property was sought to be transferred. 33. Mr. N.K. Prasad, on the other hand submitted that by reason of the said instrument the corpus of the property itself was transferred and as such the grant must be held to be an absolute one which would devolve upon the heirs of Bibi Saira upon her death. 33. Mr. N.K. Prasad, on the other hand submitted that by reason of the said instrument the corpus of the property itself was transferred and as such the grant must be held to be an absolute one which would devolve upon the heirs of Bibi Saira upon her death. In the alternative the learned counsel submitted that if by reason of the said grant merely a life interest in respect of the usufruct of the property was created, the corpus of the property has in law been retained and the same having continued to remain vested in Hazi Munshi, Naziruddin and this Bibi Saira being one of her heirs would inherit to the said extent of her share upon his death and consequently the plaintiff and performa defendant No. 6 would also inherit the said interest upon the death of Bibi Saira. 34. From a perusal of the said document the following facts emerge :- (a) The parties are governed by Hanafi school of Mohammedan law. (b) Out of the wed-lock of Hazi Munshi Naziruddin Ahmad and Bibi Saira no child was begotten. (c) That the executant was happy and was satisfied with the good behaviours of his wife and he intended to keep at his wife’s disposal sufficient property for her maintenance which are subject matter of the said document. (d) A Moharrari Hinhayati deed was thus sought to be created which Bibi Saira agreed to take and accept the same. 35. The said deed, inter alia, contains the following terms :- (a) A Mokarrari Hinahyati interest was created which Bibi Saira accepted and become entitled to and came in possession thereof. (b) She was to remain in exclusive possession of the aforementioned property in the capacity of Mokair arider till her life time and also to get her name mutated as such in different officer as may be necessary. (c) That the grantee was to pay all municipal and other taxes in respect of the properties which were the subject matter of the aforementioned instrument and was also entitled to carry out necessary repairs therein and on the score the was not to commit any negligence or default. (d) That Mokarraridar was also liable to remit a sum of Rs. (d) That Mokarraridar was also liable to remit a sum of Rs. 28/- every year out of income as an offering to Hazari Sah Maulana Amanulla Saheb at Phulwari Sharif district Patna and after the letters death to his successor and after doing so whatever income is left out of the property aforesaid the could appropriate the sum for her own use. (e) That the Mokarraidar was liable to efficiently manage the property and to protest it from loss or destruction. She had no right to sell or in any way encumber the said property or any part thereof in any manner whatsoever and any such sale on in cumbrance created in respect of the property would be illegal and would not have any binding effect upon the executant. (f) After her death, the life interest given to her would case to have any effect and her present heirs at present or in future would not derive any right in respect thereof, which would devolve upon the nephew of the executant, namely, Abdul Mannan Salam or upon his heirs. The said document also contains a warranty of the Doner of title and it is stated that in the event it is found that the property was encumbered in any manner the entire responsibility for the same will be that of the executant. 36. The intention of the granter of the said deed is not free from doubt. However, is my opinion, the intention of the granter has to be gathered upon reading the said instrument as a whole. It is also well know cannon of interpretation of deed that a construction should be preferred which would uphold the instrument than to a construction which would render the same invalid. 37. Upon reading the entire document, there is no doubt that by reasons of the said grant Hazi Munshi Naziruddin Ahmad only intended to provide subsistence to his wife during her life time and never intended to transfer the property in question. 37. Upon reading the entire document, there is no doubt that by reasons of the said grant Hazi Munshi Naziruddin Ahmad only intended to provide subsistence to his wife during her life time and never intended to transfer the property in question. True it is, as contended by the learned counsel for the respondents that by reason of the said grant Bibi Saira was to remain in exclusive possession of the properties in question and was to get her name mutated and was to manage the said properties as of her own but at the same time one has to hear in mind that in constructing the said document either salient features thereof namely, (a) she was to send a sum of Rs. 20/- every year to Hazrat Sah Mulana Amanvillah Saheb at Phulwari Sharif district Patna out of the income derived from the property in question. (b) She was to punctually pay all municipal and other taxes in respect of the property in question without any negligence or default on her part (c) She was to appropriate the income derived out of the property in question only after the payment of the aforementioned offering at the rate of Rs. 20/- per annum to Hazrat Sah Maulana Amanullah Saheb and payment of municipal and other taxes. (d) Upon her death the property will cases to have been (?) effect and the same was not to be inherited by her heirs but would devolve upon Abdul Mannan Salamhu or to the letters heirs, cannot be disregarded. 38. If the intention of the executant was to transfer the corpus of the property, in that event, no restriction ought to have been imposed upon Bibi Saira with regard to the punctual payment of municipal and other taxes as also to keep the property free from encumbrances. 39. The they fact that the intention of the executant was that after the death of Bibi Saira the property would devolve upon the appellants heirs clearly goes to show that such restriction have been put upon the user of the property only with the purpose that Abdul Mannan or his heirs when came in of possession thereof would get the same without any encumbrance thereupon. In the view of the matter, It must be held that merely a life grant was created in favour of Bibi Saira by reason of the said instrument and not a life estate. 40. In Abdul Wahid Khan Versus Muisumat Nuran Bibi & others it was held by the Judicial Committee that under Mohamedan Law a right in vested remainder in estate is not recognized. In Abdul Gafur and others Vs. Nezamuddin and others it was held that a Mohamedan cannot to himself by a testamentary writing either curtail or defent the legal interested of his heirs and that a Mahomeddan will is therefore inoperative with regard to third of the testator,s succession unless it is validated by the consent of the heir having interest. It was further held that a series of life rents, a kind of estate does not appear to be know to Mohomedan law. 41. This aspect of the matter was again considered by the Judicial Committee in Amjad Khan V. Asraf Khan and other In that case, the question which arose for consideration was construction of a deed of gifts that had been intended to convey a life interest only in the entire property together with power of alienation over one third thereat. In that decision question as to whether a transfer of a life estate could be made by means of a gifts, was not answered in view of the construction of the deed involved in that adopted by the Judicial Committee. In the said decision it was held that if the interest acquired by Musammat Waziran was of a life estate only, and if such and interest can be acquired under the Mohammedan law, by way of a gift, that interest came to an end on the death of Musammat Waziran and the plaintiff claiming as her heir has no title to the property. On the other hand, if as argued on behalf of the plaintiff under the Hanafi law such a limited interest as a life estate could not be transferred to Musamat Waziran by gift inter vivos, then Musamat Waziran acquired no interest in the property under the deed of the 17th January 1905, and the plaintiff claming as her heir can have no title to the property. 42. However, in Nawaziah Ali Khan Vs. 42. However, in Nawaziah Ali Khan Vs. Aki Raza Khan it was held by Sir John Beawent J that there id hardly any different between Hanafi Law with regard to the creation of the life estate. In the said decision it was held as follow :- “In their Lordship opinion this view of the matter introduces into Muslim law legal terms and conception of ownership familiar enough in English law, but wholly alien to Muslim law. In general, Muslim law draw no distinction between real and personal property and their Lordship Know of no authoritative work on Muslim law, whether the Hedaya or Baillie or more modern works, and no decision of this Board which affirm that Muslim law recognizes 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 rail, for life, or in remained What Muslim law does recognize and insist upon is the distinction between the corpus of the property itself (aya) the usufruct in the property (manafi) Over the corpus of property the law recognizes only 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 interest limited in point of time can be created in the usufruct of the property and the dominion over the corpus taken effect subject to any such limited interest.” It was further held:- “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 graduation 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 salve or the rent of his house for a definite or indefinite term, it is valid, for the same reason. 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 salve 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 considered ever the house or the slave, to the legatee provided they do not exceed the third of the property in order that he may enjoy wages or the service of the sale, or the rent or use of the house during the term prescribed and afterward restore it to the heirs (Hadaya Vol. 4, p. 527, Chap. 5, entitled “Of Usufructuary Will”) This distinction runs all through the Muslim law of gift-gifts of the corpus (hiba), gifts of the usufruct arising and usufructuary bequests No doubt where the use of a house is given to a man for his life he may, not inaptly, be termed a tenant for life and the owner of the house, waiting to enjoy it until the termination of the limited interest may be said not inaccurately to posses a vested reminder. But through the same terms may be used in English in Muslim law to describe much the same things, the two system of law and based on quite different conceptions of ownership English law recognized ownership of land limited in duration Muslim law admits only ownership unlimited in duration but remainder interest of limited duration in the use of property. 43. All the aforementioned decisions were considered by the Division Bench of the Calcutta High Court in Anjuman Ara Begum Vs. Nawab Asif Kadar Sir Syed Wasif Ali Meerza wherein it was as follows:- “To appreciate the true legal position it is necessary to remember that “life-estate”, that is life grant of a property which is usually called a life-estate is not regarded in Mohammadan Law as estate or interest in the “corpus” That law recognized only one kind of estate namely full ownership in the ‘corpus’ The ‘corpus’ mean the “article” “the thing” or “the substance”. It is district from the usufruct which mean the “use” of the “article” or the produce of “the thing”. It is district from the usufruct which mean the “use” of the “article” or the produce of “the thing”. A gift of the corpus connotes and comprehend the entire bundle of right in “the thing” or the substance in other words, full right over the article or complete dominion over the substance”. The test is this complete dominion over “the substance”. That dominion in absolute and indivisible. It permits no slicing and tolerates no obstacle or restriction Grant of full dominion over the “corpus may” however, be accompanied by a gift of the use of usufruct to another, that is, a condition or limitation as regard the “usufruct” and both the grant and the condition will be valid. Limited interest short of complete ownership may also be crested but not in the form of a gift of a “corpus” subject to a condition affecting the same “the thing” or the “substance”. Any such interest whether limited in point of quality in or point of duration-is in Mahomedan Law, different from the “corpus” and takes effect out of the “usufruct”. The law was further stated in these terms:- “In the Muslim Law, therefore as already stated, there is a clear distinction between the “corpus” or “the substance” and the “usufruct” Over the “corpus” the law recognizes only absolute, complete and indivisible ownership and there it countenances no detraction or limitation interests can be created and the limitation may well be in point of time or duration, eg, for life or for a fixed a period. Limited interest are thus recognized in Mohamadan Law though not in the corpus but only in the usufruct and where the grant is of a limited character-bus not a grant of the corpus subject to condition-it takes effect out of the usufruct and is not regarded as a grant of the corpus at all but only as a grant of or in the usufruct. A grant of the corpus must be absolute and any condition or restriction derogatory to the grant and affecting the “corpus” be disregarded and if a limited grant is sought to be made by such a device it leads to the same result, namely, that the condition or restriction is swept aside and the grant takes effect as an absolute grant, that being the only valid grant which can be made of the corpus. A grant of the corpus may, however, be validly, made, accompanied by conditions or restriction, relating to the usufruct, and it taken effect subject to those conditions : (vide, Nawab Umjad Ally Khan Vs. Musammat Begum (14), which though a Shia case, stated the general Mahomedan Law on the point, as explained in Mohammad Abdul Ghani Vs. Fakhr Jahan Begum (15), a case under the Sunni of the Hazafi Laws And as already said a limited grant-not in the form of a gift subject to a condition affecting “the thing” as the substance as distinguished from its use or “usufruct” would be valid and would and take effect out of the “usufruct”. “The above principles are sufficiently recognized in Nawazish Ali Khan’s case (supra) and there is enough indication in that judgment that the whole discussion of this branch of the law proceed on that basis, and they explain their Leadership” final conclusion on this part of the case, appearing at p. 79 of the Report, that in dealing with a gift under Muslim law, the first duty of the court is to construe the gift. It is a gift of the corpus then any condition which derogates from absolute dominion over the subject of the gift will be rejected as repugnant but if upon construction the gift is held to be one of a limited interest the gift can take effect out of the usufruct, leaving the ownership of the corpus unaffected excepted to the extent to which its enjoyments is postponed nor the duration of the limited interest. The passage quoted clearly supports the view we have taken above of the effect of this decision of the Judicial Committee and we held, therefore that the question of validity of life-grant, with which we are here concerned must be answered in the affirmative.” 44. After discussing the aforementioned case law and other discussion it was held that in the light of what we have stated so far the true approach when a Mahommedan 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. After discussing the aforementioned case law and other discussion it was held that in the light of what we have stated so far the true approach when a Mahommedan 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 question arise if however the grant is found to be a limited grant the direct or the immediate subject matter of a gift has to be ascertained. If it is the “corpus” as explained above, 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 grants take effect out of the usufruct as a valid limited grant. In this view of the matter we held that the disputed life-grants in the present case were valid as such and did not enlarge into may absolute grant in favour of the grantees. Pertinently also we may point out that amongst Shias in this country life-grants have long been recognized as valid, Banoo Begum v. Mir Abod Ali (supra) cited with approval by the Privy Council in Nawazish Ali Khan’s case (supra). It is undisputed, that the late Nawab Nazim or, for the matter of that, the Nazamat family and all his descendants who are parties to the present suit professed and profess the Shia faith an so no difficulty arises in giving effect to the disputed grants which we have found to be limited to the lives of the respective grantee as such limited or life-grants. In this view, too, the appellants alternative arguments must fail. 45. The aforementioned decision has been followed by the Calcutta High Court in a subsequent decision (Maezin Bibi vs. Ankuman Bibi). In the said decision the Calcutta High Court also followed the decision of the Andhra Prasad High Court in Shaik Mastan Di and others vs. Shiak Biakri Sahab and other. It was held as follow:- “After consideration all these cases it is clear that a Sunni under Hanafi Mohammedan Law cannot without consideration confer ownership of the property with limitation for the life of the donee. It was held as follow:- “After consideration all these cases it is clear that a Sunni under Hanafi Mohammedan Law cannot without consideration confer ownership of the property with limitation for the life of the donee. But where the ownership is vested in somebody and only the enjoyment of the property is conveyed or received, the rule does not apply. Therefore, limitation on the enjoyment of property is permissible though it is not allowed on ownership. This separate enjoyment is known as arise and therefore if the reservation in favour of the donor under Exts. B-1 ans B-2 be of this kind, they would be valid.” To the same extant is a decision of the Madras High Court in Mrs. Hayara Bai vs. Mohammad Adami Satis, where in it was held thus:- “It should be taken to be settled law that if in a gift life estate is crated, it would taken effect out of the usufruct. Therefore in the present case the plaintiff having been granted only a life-estate it taken effect out of the usufruct. It cannot be construed as an absolute gift of the corpus with an invalid condition attached to it. The question was answered against the plaintiff. The suit therefore fails and is dismissed.” 46. Asaf A. A. Fyzee in this ‘Out line of Muhammadan Law’ Fourth Edition while dealing with the Life interests after taking into consideration observed that life interest can be a created an the following ways:- “I. By Family Wakfs (Wakf ‘ala’ awalad); II. Wills III. The Rule in Nawab Umjab Ally Khan’s Case (1867) II M.I.A 517, Cases, 337. IV. The law of gifts as explained in Amjad Khan v. Asraf Khan (1929) 56 I. A. 213, Cases 342 V. Sardar Nawazish Ali Khan’s Cases (1984) 75 I.A. 62, Cases 342; and VI. Anjuman Ara Begum v. Nawab Asif Kadar 1955 (2) Cal, 10 Cases, 357; and VII. Family Settlements. It will thus be seen that the law relating to life interest is now much clearer than before but difficulties and doubts still remain, and it is submitted that Tyabji having cleared the ground and shown that there is nothing in it inherently opposed to the principles of Islamic jurisprudence, legislation should now be introduced to remove some of the cob-webs which still surround the law regarding limited interests. A matter of such extreme practical importance ought not to be allowed to remain in a state of uncertainly. In particular, it is essential that on two points the law should be laid down with unmistakable precision first, what are the kinds of property that can be transferred for life and secondly what are the limits within which life interest may be created ? In view of the two decisions of the Calcutta and Andhra Pradesh High Courts, the position may be clear to an acute lawyer but for the public at large a short enactment is preferable and it is hoped that appropriate legislation will soon be undertaken both in India an Pakisthan. Shiite law of the life interest. What we have discussed so far is the law applicable to the persons governed by the Hanafi school to Sunnite Law. We must now turn of the Ithna Ashari and the Fatamid law on the subject. Both the Ithna ‘Ashari and Fatimid school of Shitee law recognize limited interest to a large extent. The commonest forms are:- (i) Umra, a life grant of the use or usufruct for life. (ii) Sukhs, the right to reside in a house for life. (iii) Ruqba, the right to take the usufruct for a certain period depending on a contingency. Thus it is clear that by Shitee law life interest may be validly created. It was formerly thought that the Ithna Ashari school permitted the creation of vested remainders, as well but since Sardar Nawazish Ali Khans Case, the earlier decision must be treated as overruled. The chief rules for the creation of a life interest may now be stated. The grantor must deliver possession of the property to the life tenant. The grantee must be in existence at the time of the grant. This rule applies only to the first grantee, where are successive life grants the succeeding grantees should be in existence when their interest open out. Every thing to which a Wakf can be made may be the subject of the grant of a limited, interest. The essential condition is that the property must admit of use without being consumed. This rule applies only to the first grantee, where are successive life grants the succeeding grantees should be in existence when their interest open out. Every thing to which a Wakf can be made may be the subject of the grant of a limited, interest. The essential condition is that the property must admit of use without being consumed. A life-grant made for a purpose other than religious or for an indeterminate period is revocable at the wish of the grantor, and is determine at any rate at the death of the granter unless the remainder is disposed of, it reverts to the donor. The latest decision of life-grants is Anjuman Ara’s Case which has been fully discussed above. Vested remainders. In Abdul Wahid Khan Vs. Mst. Nurun Bibi (supra), the Privy Council held that a vested remainders was not known to Muhammadan law; and this appears to be the generally accepted view as regard the Hanafi law, despite Umesh Chader Sircar Vs. Mst. Zahoor Fatima. On the other hand, Tyabji is of the opinion consistently with view on the question of life interests, that there is no reason why it would not be held valid. The question is not free from difficulty, but after Sardar Nawazish Ali Khan’s Case, a true vested remainder as understood in the common law of England, would it is submitted, be difficult to justify for though the same terms may be used in England and Muslim law to describe much the same things, the two systems of law are based on quite different conception of ownership No doubt where the use of a house is given to a man for his life he may not inaptly be termed a tenant for life and the owner of the house waiting to enjoy it until the termination of the limited interest may be said not inaccurately to posses a vested remainder. The case of Anjuman Ara Begum Vs. Nawab Asif Kadar (supra) does not discuss the creation or the validity of vested remainder. For Shafi law, see Mahomad Ibrahim Vs. Abdul Latif (1913) 37 Bom. 447.” 47. In Mohammedan Law by Syed Ameer Ali, 4th edition it has been pointed out:- “Under the Hanifi Law, a life-grant or ‘Umra, if made in terms which imply an absolute gift, takes effect as a hiba, the condition limiting this gift being held void. For Shafi law, see Mahomad Ibrahim Vs. Abdul Latif (1913) 37 Bom. 447.” 47. In Mohammedan Law by Syed Ameer Ali, 4th edition it has been pointed out:- “Under the Hanifi Law, a life-grant or ‘Umra, if made in terms which imply an absolute gift, takes effect as a hiba, the condition limiting this gift being held void. A gift to A for life and remainder to B takes effect as an English expression, gives him as estate in fee. A more grant of the usufruct of a thing, however is in the eye of the law, simple ‘Adriat or commodate loan which implies on the part of the donee the obligation of returning the self-same thing.” 48. It is thus clear from the aforementioned authorities that a life grant has to be distinguished with life estate and when a corpus of the property itself is transferred by reason of a Hiba any condition attached thereto will be invalid whereas such conditional grant for the life authority the donees to utilize the usufruct of the property for his/her life is valid. 49. In view of my finding aforementioned that by the said Hina Hiyati deed (Ext. D) namely and interest in the usufruct of the property was transferred by Hazi Munshi Naziruddin in favour of Bibi Saira it must be held that the said instruction is valid in law. 50. However, the matter does not rest there. If by reason of the purported Hinhayati deed (Ext. D), the corpus of the property itself did not pass on the Bibi Saira in such an event it must be held that the title in respect thereof continued to remain with Hazi Munshi Naziruddin. 51. The question, therefore which now arise for consideration is as to what would be that nature of grant made by Hazi Munshi Naziruddin in favour of the appellant. 52. If the title in respect of the property in question by reason of the instrument dated 8-8-1958 (Ext. D) did not pass on to Bibi Saira then in law it continued to remain with the granter. In such a situation upon his death ordinarily the succession would open in the event Bibi Saira would inherit to the extent of four anna interest in the properties left by Hazi Munshi Naziruddin. 53. In Anjuman Ara Begum Vs. D) did not pass on to Bibi Saira then in law it continued to remain with the granter. In such a situation upon his death ordinarily the succession would open in the event Bibi Saira would inherit to the extent of four anna interest in the properties left by Hazi Munshi Naziruddin. 53. In Anjuman Ara Begum Vs. Nawab Asif Kadar Sir Syed Wasif Ali Meerza (supra) Bench of the Calcutta High Court also held that if the life grant was valid, they ended with the death of the granter. 54. In this connection reference may be made in Amjad Khan Vs. Asraf Khan and others (supra) wherein a converse case was decided. In that case it was held that if the corpus of the property did not pass by reason of the said grant upon the death of the granter the plaintiff of that case did not inherit any share and as such the plaintiff’s suit was dismissed. If the principle on the basis whereof the aforementioned case was decided is to be the applied in this case conversely, in such an event it must be held that upon death of Hazi Munshi Naziruddin Bibi Saira would inherit four annas interest in his estate. 55. From the aforementioned Hinhayati deed (Ext. D) it is evident that thereby Hazi Munshi Naziruddin directed that upon death of Saira, the property would devolved upon the appellant or his heirs and not to the heirs of Bibi Saira. This disposition of property in favour of the appellant must be considered to be a gift by Hazi Munshi Naziruddin in favour of the appellant. It cannot be a will as it did not take effect upon his death but was to book take effect upon the that of Bibi Saira. 56. As noticed herein before, the Privy Council in Abdul Gafur’s case (supra) held the Mohammedan Law books down upon curtailment of right of an heir by testamentary writing. In this case the said purported grant by Hazi Naziruddin in favour of this appellant cannot be construed to be a will. In any event a will to the extent of more than 1/3rd share of the properties of the testator is invalid in law. 57. The said instrument cannot also be construed as a family settlement because at the point of time when the same was executed; admittedly the appellant had no interest therein. In any event a will to the extent of more than 1/3rd share of the properties of the testator is invalid in law. 57. The said instrument cannot also be construed as a family settlement because at the point of time when the same was executed; admittedly the appellant had no interest therein. It therefore, was nothing but a gift in future as only such type of instrument can be created without consideration. If it be construed to be a gift in favour of Abdul Mannan, the same is void ab initio as by reason of the aforementioned Hin Hayati deed, Bibi Saira was to remain in exclusive possession of the properties till her life time and no other person. It is well known that according to Hanifi Law the subject of gift must be separated or remove so as not to be joined to what is not given; and transferring possession of the subject of gift joined to something not intended to be transferred is not a valid transfer of possession. In this connection reference may also be made to para 376 of Faiz Badruddin Tyabji’s Mohammedan Law Second Edition. The subject of gift be validly delivered to the donee contained in a thing belonging to the doner and not forming part of the subject of gift; but there is no valid delivery of possession where the subject of the gift is delivered containing something that does not from part of the gift. 58. What is a possession of the subject of gift has been mentioned in paragraph 382A and 383 in the same treating in the following terms:- “382 A. A person is said to be in possession of a thing, or of immovable property when he is so placed with reference to it that he can exercise exclusive control ever, it for the purpose of deriving from it such benefit as it is capable of rendering or as is usually derived from it. “383(1) The declaration and acceptance of a gift do not operate to transfer the ownership of the subject of gift, unless and until the gift is completed by the transfer to the donee of such seisin or possession as the subject of the gift permits : where possession of the subject of a gift is given to the donee at a time subsequent to the declaration and acceptance of the gift, the ownership of the subject of the gift is transferred to the donee as from the date when possession in given, and not before. (2) Immam malik holds that the right to the gift property relates back to the time of the declaration. Explanation I-The donor must do everything which according to the nature of the property that forms the subject of the gift, it necessary to the done in order to transfer ownership of the property, and to render the gift complete, and binding upon himself. Explanation II-The donor with will be held to have done everything that is necessary to be done in order to transfer possession, when he has put it within the power of the donee to take possession of the subject of gift, if he so chooses. 59. In this connection reference may also be made to Abdul Wazid Khan Vs. Mst. Nuran Bibi (supra) where it has been held that a ‘vested reminder’ is not know to Muhammadan Law. It is also profitable to refer to the decision of Sardar Nawazish Ali Khan’s case (supra) where the law was laid down in the following terms :- “This distinction runs all through the Muslim law if gifts-gifts of the corpus (hiba) gifts of the usufruct (ariyat) and usufructuary bequests. No doubt where the use of a house is given to a man for his life he may not inaptly, be termed a tenant for life and the owner of the house waiting to enjoy it until the termination of the limited interest, may be said not inaccurately, to posses a vested remainder. But though the same terms may be used in English and Muslim law, to describe much the same thing, the two systems of law are based on quite different conceptions of ownership English law recognizes ownership of land limited in duration Muslim law admits only ownership unlimited in duration but recognize interest of limited duration in the use of property.” 60. In Tyabji’s principles of Mohammedan Law (second addition) in para 349 at para 379 it has been stated:- “While the declaration of a gift purported to transfer the subject of the gift to the donee at a future time or contingently on the happening of a future event, the gift id void.” 61. In the instant case by reason of the Hinhayati deed in question (Ext. D), the property was in the event of death of Bibi Saira, was to devolve upon the appellant or his heirs. The gift to the appellant or his heir thus was meant to take effect at a future time and thus, must be held to be deferred for an uncertain period and thus the same in my opinion, was void. 61. Mulla in his principles of Mohammedan Law at para 149 states the law thus:- “The three essentials of a gift-It is essential to the validity of a gift that there should be 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 on the subject of the gift by the donor to the denee as mentioned in Sec. 150. If these conditions are complied with the gift is complete. 62. The answer to she aforementioned question therefore are (a) the Hinhayati deed dated 8-8-1958 (Ext. D) is valid in law except the condition that upon the death of Bibi Saira the property would devolve upon the appellant. 63. It must be mentioned at this juncture that this position of law was also understood by all concerned. The concerned parties viz the appellant and Bibi Saira acted upon on the aforementioned basis. As a matter of fact the appellant at all material times i.e. prior to the institution of the suit by the plaintiff-respondents no. 1 had been acting on the basis that he become the owner in respect of 12 annas interest only. In fact even during the life time of Bibi Saira the income from properties also were being distributed between appellant and Bibi Saira to the extent on 12 and 14 annas respectively. 64. In view of my findings aforementioned it is not necessary to deal in details the aforementioned question but as the learned counsel had addressed me on this point at great length I will deal with some briefly. 65. 64. In view of my findings aforementioned it is not necessary to deal in details the aforementioned question but as the learned counsel had addressed me on this point at great length I will deal with some briefly. 65. Re Question No. 3 The conduct of the appellant in various litigation which were pending during the life time of Bibi Saira or thereafter is not consistent. It is admitted that the appellant instituted a suit being Title Suit No. 10 of 1963 wherein he claimed the title in respect of the entire properties by reason of an oral gift. In the plaint of the said suit itself the appellant mentioned that the said Hinhayati deed dated 8-8-1958 was not accepted upon and was invalid in law. However, as noticed hereinbefore an application for amendment of the plaint in the aforementioned suit was filed but the same was rejected. 66. On 16-7-1968 the appellant had filed an application in the said suit praying for time to file a compromise petition where in it was stated that a compromise petition hade been made outside the court but no further step was taken in the suit by the parties. On 14-7-1970 the appellant and Bibi Saira allegedly entered into an agreement as a result whereof Bibi Saira was considered to be the full-fledged owner in respect of 4 annas interest whereas Abdul Manan was declared to be the owner of 12 annas interest but no Takhtabandi was granted and the management of the property was entrusted to Abdul Manan on behalf of both the parties. This agreement was marked as Exhibit-F, mention whereof finds place in the written statement. This purported deed itself goes against the contention of the appellant. 67. Mr. N.K. Prasad learned counsel appearing on behalf of the respondent submitted that the same is a forged and fabricated document inasmuch as no reference of the said agreement with regard to the appropriation of the rental income by and between Abdul Manan and Bibi Saira to the extent of 12 annas and 4 respectively. It further appears that a deed of sale was executed jointly in favour of Santoshi Devi by the appellant and Bibi Saira on 10-7-1970. The said deed of sale has been marked as Exhibit 3. It further appears that a deed of sale was executed jointly in favour of Santoshi Devi by the appellant and Bibi Saira on 10-7-1970. The said deed of sale has been marked as Exhibit 3. In the aforementioned deed of sale Abdul Manan claimed himself to be the owner in respect of 12 annas interest only and accepted and acknowledge Bibi Saira to be the owner in respect of the rent. 68. From Exhibit-5 which is an application filed by Abdul Manan in Title (Eviction) Suit No. 63 of 1971 from where it appears that thereby the name of plaintiff No. 1 was prayed for to be expunged However, from Exhibit 5/8 i.e. a petition dated 21-11-1972 it appears that Abdul Manan himself prayed that in place of original plaintiff No. 1 therein her heirs and legal representative i.e. plaintiff and proforma defendant No. 6 of the present case by substituted. 69. From a perusal of Exhibit 5/C it appears that Abdul Manan filed an application on 16-7-1968 in Title Suit No. 10 of 1963 praying therein for one month’s time for preparation of Taktha Even in a notice dated 7-12-1970 (Exhibit 2/B) being under Section 105 of the Transfer of Property Act, it was mentioned that Bibi Saira was owner of 4 annas interest. Reference in this connection may also be made to Exhibit 7/C and Exhibit 7/d i.e. 8-1-68 and 20-6-1968 wherein also Bibi Saira was acknowledge to be the owner in respect of 4 annas of interest. 70. Exhibit is the judgment passed in the aforementioned Title Suit No. 10 of 1963. In the said judgment it has been held that the aforementioned Hinhayati deed was not given effect to. Exhibit N is the plaint of T.S. No. 63 of 1971 wherein the plaintiff and the defendant no. 6 were substituted after the death of Bibi Saira which the filed along with Marron Ali against Zahoor Gaffer. 71. It is now well known that the an admission made by a party to the suit is admissible against him proprio vigore. Such admission of the plaintiff are contained in paragraph 18 of the plaint of Title Suit No. 10 of 1963. 71. It is now well known that the an admission made by a party to the suit is admissible against him proprio vigore. Such admission of the plaintiff are contained in paragraph 18 of the plaint of Title Suit No. 10 of 1963. True it is that an admission made by the plaintiff can be withdraw or resiled for but in the instant case as it is evidence from Exhibit D, the certified copy of the order sheet in Title Suit No. 10 of 1963 that the application filed by the plaintiff to amend the plaint was rejected. It is also evidence that Abdul Manan filed a Civil Revision Application in this court against the said order which was registered as Civil Revision Application No. 262 of 1966 and the said revision against the order of rejection for the prayer for amendment by the learned Subordinate Judge dated 6-6-63 in Title Suit No. 10/63 was also dismissed on merit. The certified copy of judgment of this Court in the aforementioned Civil Revision Application No. 262 of 1966 is Exhibit P. The very fact that Abdul Manan tried to set up a case of an oral gift in his favour allegedly made by Hazi Munshi Naziruddin in the aforementioned Title Suit No. 10 of 1963 as well as his subsequent conduct, in my opinion, clearly goes to show that according to him he had all along been contending that the said Hinhayati deed was not acted upon, Further as noticed hereinbefore the along with Bibi Saira executed a deed of sale (Exhibit 3). The recitals of a said deed of sale are also binding upon the appellant. 72. Ext. N is the judgment of Title Suit No. 10 of 1963 wherein it was held that the said Hin Hayati deed was not acted upon. The finding aforementioned is also binding upon the parties to the suit as the question as to whether the said Hin Hayati deed was acted upon or not was an issue in the aforementioned T.S. No. 10 of 1963. In any event, as mentioned herein before it is binding upon the appellant by way of admission. By rejecting the application for amendment of plaint evidently the appellant was not permitted to withdraw or resile from his admission. 73. In any event, as mentioned herein before it is binding upon the appellant by way of admission. By rejecting the application for amendment of plaint evidently the appellant was not permitted to withdraw or resile from his admission. 73. The appellant further on his own showing took advantage of an agreement allegedly made by and between him and Bibi Saira. Although the genuineness of this document, as noticed, hereinbefore, has been questioned by Shree N.K. Prasad, learned counsel appearing on behalf of plaintiff respondent but one thing is clear from the said document that thereby Abdul Manan, has been show in other document, had been claiming 12 annas interest during life time of Bibi Saira herself. Even according to his own showing during the life time of Bibi Saira he was managing the properties in suit and had been dealing with the said property to the extent of his own share. 74. Thus, in my opinion, in view of his conduct, as aforementioned, he is estopped and precluded from contending that the said Hinhayati deed was acted upon. It is a well settled principle of law that a party cannot be permitted to approbate and reprobate, nor is he entitled to take advantage of his own wrong. 75. In any event this point does not require any further discussion in view of my finding aforementioned that after the death of Hazi Munshi Naziruddin, 4 annas interest devolved upon Bibi Saira and 12 annas interest devolved upon the appellant and thus it was possible for them irrespective of the continuance of the said Hinhayati deed to enter into family settlement with regard to the management of the property. 76. Further, in view of the fact that both Bibi Saira and Abdul Manan executed a deed of sale (Ext. 3) both of term are bound by recitals thereof that Bibi Saira as well as Abdul Mannan had 4 annas share and 12 annas share interest in respect of the properties in suit respectively. 77. It is admitted that Plots No. 854 and 2764 are not the subject matter of Hinhayati deed. 78. So far as plot No. 1764 is concerned, it appears from paragraph 11 of the written statement that the same was sold in auction in the year 1961 and in the said auction sale the property was purchased by defendant No. 2 (wife of Abdul Manan). 79. 78. So far as plot No. 1764 is concerned, it appears from paragraph 11 of the written statement that the same was sold in auction in the year 1961 and in the said auction sale the property was purchased by defendant No. 2 (wife of Abdul Manan). 79. However, so far as plot No. 854 is concerned the same was not claimed by the appellant as defendant No. 2 did not prefer any appeal against the judgment it must be held that the appellant in this appeal cannot question the impugned judgment in relation on the said plot. 80. So far as plot Nos. 1764 and 774B are concerned the same had also been allegedly purchased by defendant No. 1 and is turn sold it to defendant No. 2 in court in auction sale. It also appear that plot Nos. 1064 was sold by defendant No. 1 to defendant Nos. 3 to 5 and this fact has been accepted by defendant No. 1. 81. So far as these plots are concerned, in view of the fact that the suit is for a partition in the final decree proceedings the same could be allotted to the share of Abdul Manan. This appeal therefore, cannot be said to barred in respect of the aforementioned plots. 82. However, so far as plot No. 1764 is concerned, the same is claimed by defendant No. 2 exclusively. In this view of the matter the aforementioned plot being not the subject matter of appeal, no interference is possible in respect thereof so far as the judgment of the learned trial court is concerned. 83. First Appeal No. 35 of 1987 (R) as noticed herein above as been preferred from the final decree passed in the aforementioned partition suit. 84. Mr. Debi Prasad learned counsel for the appellant raised only question. He submitted that from perusal of the report of the survey knowing pleader commissioner which has been made part of the final decree proceeding, it will appear that three plot viz 853A 854 and 1065 have been allotted to the plaintiff-respondents which have been valued at Rs. 64,000/- According to Mr. Debi Prasad the building constructed on plot no. 854 in north Rs. 64,000/- According to Mr. Debi Prasad the building constructed on plot no. 854 in north Rs. 1,00,000/- and in this view of the matter the learned court below ought not to have accepted the report of the survey knowing pleader commissioner without offending and opportunity to the appellants to adduce evidence relating to valuation of the suit. 85. Mr. N.K. Prasad learned counsel for the plaintiff-respondents on the other hand, submitted that from a perusal of the report of the survey knowing pleader commissioner it will appears that the plaintiff their tenant had registered the inspection by the survey knowing pleader commissioner. According to the learned counsel objection with regard to the valuation of the properties ought to have been raised by the appellants before the survey knowing pleader commissioner himself. Learned counsel further submitted that in fact before the learned trial court an offer was made by the plaintiff-respondents that instead of three plot as mentioned in schedule A appended to the report of the survey knowing pleader commissioner, the building situate on plot no. 744 B be allotted to the plaintiff. According to Mr. Prasad according to the appellant himself, the valuation of the properties allotted to his share have been valued on lower side, whereas the properties allotted to the plaintiff-respondents have been valued on the higher side. Mr. Prasad, therefore contends that if this be so the appellants should have no objection in exchanging the properties which have been allotted to the plaintiff in lieu of the house situate on plot No. 774B, which even according to the plaintiff will fetch less value than the properties allotted to the plaintiffs. 86. Mr. A.K. Sinha, learned counsel for the intervener submitted that during the pendency of the appeal his client has purchased some lands out of plot No. 853A from the appellant. He, therefore urged that the properties which have been purchased by the intervener should have been allotted to the appellant and not to the respondents. 87. Mr. N.K. Prasad in reply has draw my attention to the fast that the survey knowing pleader commissioner has in fact found that the said property has been in possession of the plaintiff-respondents. 88. From the record, it appears that the appellant had filed his objection with regard to the report of the survey knowing pleader commissioner. 87. Mr. N.K. Prasad in reply has draw my attention to the fast that the survey knowing pleader commissioner has in fact found that the said property has been in possession of the plaintiff-respondents. 88. From the record, it appears that the appellant had filed his objection with regard to the report of the survey knowing pleader commissioner. In the objection it was stated than the structures standing on plot No. 845 would be valued more than Rs. 1,00,000/-. 89. Having regard to the facts and circumstances of the case, and particularly in view of the fact that he appellant has not been given an opportunity to adduce evidence with regard to the valuation of the properties, I am of the opinion that the learned trial court should give an opportunity to the appellant to adduce evidence to prove the valuation of the properties allotted to the plaintiff-respondents. 90. The learned trial court, in the facts and circumstances of the case, shall also consider the submissions as indicated hereinbefore, made by Mr. N.K. Prasad. 91. If in the event, plot No. 853A is allotted to the share of the plaintiff-respondent No. 1, in view of the fact that he is in possession thereof, the learned trial court should allot such properties to the intervener, from the schedule of the properties allotted to the appellants as he may deem fit and proper. 92. In the result, First Appeal No. 223 of 1977 (R) is dismissed and the judgment and preliminary decree dated 29th July, 1977, passed by the learned trial court in Partition Suit No. 35 of 1974, is hereby affirmed. So far as the First Appeal No. 35 of 1987 (R) is concerned, it is allowed and the judgment and final decree dated 19th January, 1987 passed by the learned trial court in Partition Suit No. 35 of 1974 is set aside and the case is remitted to the learned trial court for disposal of the final decree in accordance with law and keeping in view the observation made hereinabove. 93. Before parting with the case, I may mentioned that by order dated 27-8-1987 passed in First Appeal No. 223 of 1977 (R), an learned Single Judge of this court granted stay in favour of the appellant subject to the condition that the would deposit Rs. 3,600 in the Court. 93. Before parting with the case, I may mentioned that by order dated 27-8-1987 passed in First Appeal No. 223 of 1977 (R), an learned Single Judge of this court granted stay in favour of the appellant subject to the condition that the would deposit Rs. 3,600 in the Court. By that order, it was further directed that in the event this appeal fails plaintiff-respondents shall be entitled to withdraw the said amount unconditionally. As the said amount has been deposited in terms of the order dated 27-8-19987 the plaintiffs-respondents would be entitled to withdraw the same without furnishing any security. 94. Before pasting with the case, it must be observed that as the suit is of the year 1974, the learned trial court shall try to dispose of the objection of the appellant in the final decree proceeding expeditiously preferable within one month from the date of receipt of the lower court records. The learned trial court shall not grant un-necessary adjournment to any of the parties. In the fact and circumstance of this case, parties shall bear their own cost in these appeals. FA No. 223/1977R-dismissed. FA No. 35/87R-allowed.