Judgment R.A.Sharma, J. 1. Md. Murad Ali (hereinafter called as plaintiff] filed Partition Suit No. 35/74 in the Court of 1st Addl. Sub-Judge, Hazaribagh, seeking a decree for partition of his 1/4th share in the property of Hazi Munshi Naziruddin described in Schedule A at the foot of the plaint and for carving out a separate Takhata of his 1/4th share. The suit was decreed on 29.7.1977 by the trail Court and the preliminary decree was accordingly prepared. Being aggrieved thereby, the defendant, Abdul Manan (hereinafter called as defendant-appellant) filed a First Appeal No. 223/77R before this Court. During the pendency of the said appeal, final decree was also prepared against which another First Appeal No. 35/87R was filed by the defendant-appellant. Vide judgment dated 22.5.1989, the learned Single Judge dismissed the F.A. No. 223/1977 filed against the preliminary decree. However, F.A. No. 35/87 (R) filed against the final decree was allowed and the trial Court was directed to prepare the final decree afresh in accordance with law, keeping in view the observations made in the judgment. The defendant-appellant, being dissatisfied with the judgment of the learned Single Judge, has filed this appeal under Clause 10 of the Letters Patent. 2. The plaintiff filed the suit with the allegations, inter alia, that Hazi Munshi Naziruddin had two wives, Bibi Alimen @ Bibi Kolsum and Bibi Saira; that Bibi Alimen died in 1947 and Hazi Munshi Naziruddin also died in 1960 leaving no issue from any wife; that before his death Naziruddin executed a Hinayati deed dated 8.8.1958 in favour of his wife Bibi Saira giving his property to her till her life time with the right to remain in its exclusive possession and to manage and protect it and to get her name mutated as such in the revenue record with the condition that she will pay all the Municipal and other taxes in respect of the property and will also remit a sum of Rs. 20.00 every year out of the income from property as an offering to Hazari Sah Maulana Amanullah Saheb at Phulwari Shariff, District Patna. It was also provided in the said deed that after her death, the entire property would devolve upon his nephew namely Abdul Manan (defendant-appellant), Bibi Saira died in 1972. Hence, the suit for partition by the plaintiff. 20.00 every year out of the income from property as an offering to Hazari Sah Maulana Amanullah Saheb at Phulwari Shariff, District Patna. It was also provided in the said deed that after her death, the entire property would devolve upon his nephew namely Abdul Manan (defendant-appellant), Bibi Saira died in 1972. Hence, the suit for partition by the plaintiff. The plaintiffs claim is that he along with defendant No. 6 are entitled to 1/4th is Share in the suit property by virtue of being heirs of Bibi Saira who was the widow of A Naziruddin who died issueless. The plaintiffs further claim is that as the defendant No. 6, by agreement dated 22.11.1973, had transferred his right, title and interest in his favour, he is entitled to 1/4th share in the suit property. 3. The case of the defendant-appellant, who is nephew of Naziruddin, is that by Hinhayati deed executed in 1958, Bibi Saira was given the right as regards usufruct of the said property till her life and after her death, the whole property has devolved upon him. Relying upon the Clause 8 of the said Hinhayati deed, which is reproduced below, the defendant-appellant claimed that the whole of the property had been gifted by Naziruddin to him. Therefore, Bibi Saira and after her death, the plaintiff and the defendant No. 6 are not entitled to any share in the said property: That after the death of the executce (Mokarraridar), the life interest given to her in the property will cease to have any effect and her present heirs or any in future will not have any kind of right, title on interest in the property aforesaid. Thereafter, the entire property aforesaid will devolve upon the executees nephew namely Abdul Mannan Salamhu or to the latters heirs. 4. The trial Court held that the Hinayati deed executed by Naziruddin was never acted upon and, therefore, Bibi Saira upon the death of Naziruddin, being his widow, was entitled to 1/4th share in his property and the remaining 3/4th share has to go to the defendant-appellant. 5. In the appeal in this Court, the learned Single Judge in paragraph No. 29 of his judgment formulated the following four questions for consideration/decision: (i) Whether by virtue of a Hinayati deed dated 8.8.1958 (Ext. 5. In the appeal in this Court, the learned Single Judge in paragraph No. 29 of his judgment formulated the following four questions for consideration/decision: (i) Whether by virtue of a Hinayati deed dated 8.8.1958 (Ext. D), the right of usufruct in the property only or the corpus thereof was conveyed to Bibi Saira by Naziruddin? (ii) Whether the Hinayati deed (Ext. D) is valid in law? (iii) Whether the appellant in various litigations and being party to various documents as referred to hereinbefore having admitted that the said Hinayati deed was not acted upon and Bibi Saira 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 a Naziruddin? (iv) Whether the appeal by the appellant in respect of Plot Nos. 854, 1764, 1767, 7748 and 1046 is not maintainable? 6. The learned Single Judge decided first two questions together holding that by Hinayati deed executed by Naziruddin, the properties were not intended to be transferred to Bibi Saira and she was only given a life grant as regards usufruct in the property with the right to possession of the same till her death. The learned Single Judge declared the condition contained in Clause 8 of the said deed as regards devolution of the property on the defendant-appellant after the death of Bibi Saira as void. The third question formulated by the learned Single Judge was also decided in favour of plaintiff-respondents holding that the defendant-appellant is estopped and precluded from denying 1/4th share of Bibi Saira in the property of Naziruddin. The fourth question related to certain plots with which we are not concerned in this appeal as no argument in this connection has been made by the learned Counsel for the parties. The learned Single Judge accordingly dismissed the appeal and affirmed the judgment and the preliminary decree passed by the trial Court. 7. In view of the arguments of the learned Counsel for the parties, the following four questions survive for decision: (i) Whether, by Hinhayati deed the property itself was transferred to Bibi Saira or only a life grant as regards usufruct of the property was created in her favour? (ii) Whether, by the Hinhayati deed, a valid gift of his property has been made by Naziruddin in favour of the defendant-appellant? (ii) Whether, by the Hinhayati deed, a valid gift of his property has been made by Naziruddin in favour of the defendant-appellant? (iii) Whether Bibi Saira and her heirs are entitled to inherit 1/4th share in the property of Naziruddin? and (iv) Whether the defendant-appellant is estopped and precluded from contending that Bibi Saira is not entitled to inherit 1/4th share in the property of Naziruddin? 8. As regards the first question, the learned Counsel for the plaintiff-respondents has argued that by Hinhyati deed the corpus of the property was transferred to Bibi Saira and the condition regarding the devolution of the property after her death on the defendant-appellant being void has to be ignored. On this basis, it is contended by the learned Counsel that the whole of the property of Naziruddin described in Schedule A is liable to be inherited by the plaintiff along with defendant No. 6. But this plea cannot be accepted for two reasons:- firstly in the suit, the plaintiff himself specifically claimed 1/4th share in the property of Naziruddin and secondly, from the perusal of the said deed as a whole, it is apparent that only a life grant as regards usufruct of the property was given to her with right to possess and to manage the property. The corpus of the property was never transferred to her and she was specifically prohibited from alienating or encumbering the property in any manner. This question has been dealt with in detail by the learned Single Judge with whom we fully agree. It is, therefore, not necessary for us to make any further comment in this regard. 9 The question Nos. (ii) and (iii) being inter-linked are being decided together. Under the Mohammedan law, there is a distinction between the corpus of the property (Ayn) and the usufruct of the property (Manafi). It is open to a Mohamedan to make the gift of corpus as well as the usufruct of the property. He can also transfer the property by way of gift with the condition reserving the usufruct of the property so transferred either in his own favour or in favour of another person. In this connection, the Supreme Court in Jameela Begum V/s. The Controller of Estate Duty Madras -- , has observed as follows: 3. He can also transfer the property by way of gift with the condition reserving the usufruct of the property so transferred either in his own favour or in favour of another person. In this connection, the Supreme Court in Jameela Begum V/s. The Controller of Estate Duty Madras -- , has observed as follows: 3. Sec. 164 of Mullas Principles of Mohammedan Law, 18th Edition at page 174 deals with Gift with a condition and States that 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. 4. Thus Mohammedan Law makes a distinction between the corpus of a gift (Ayn) and the usufruct (Manafi). A reservation of rights in manafi so long as the Ayn is transferred does not render the gift bad. 5. Sec. 165 at page 177 deals with condition in the nature of a trust and states: Where property is transferred by way of gift, and the donor does not reserve dominion over the corpus of the property nor any share of dominion over the corpus, but stipulates simply for and obtains a right to the recurring income during his life, the gift and the stipulation both valid. Such a stipulation is not void, as it does not provide for a return of any part of the corpus.... In the aforementioned case of Jameela Begum, the property was settled in favour of the beneficiary with the condition of payment of its income to the settlor during his life time and after his death to his wife. The Supreme Court upheld both the settlement and the condition. 10. For a valid gift under the Mohamedan law, the following three conditions must be satisfied: (i) A declaration of gift by the donor. (ii) An acceptance of gift, express or implied, by the donee, and (iii) Delivery of possession of the property gifted by the donor to the donee. Sec. 149 of the Mullas Principles of Mohammedan Law (19th Edition), in this connection, being relevant, is quoted below: 149. (ii) An acceptance of gift, express or implied, by the donee, and (iii) Delivery of possession of the property gifted by the donor to the donee. Sec. 149 of the Mullas Principles of Mohammedan Law (19th Edition), in this connection, being relevant, is quoted below: 149. The three essentials of a gift.--It is essential to the validity of a gift that there should be (1) 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 of the subject of the gift by the donor to the donee as mentioned in Sec. 150. If these conditions are complied with, the gift is complete (k): If any of three conditions mentioned above is not satisfied, there cannot be any valid gift. 11. Gift in Futuro is not permissible under the Mohamedan Law, Sec. 162 Mullas Principles of Mohammedan Law, in this regard, states as under: 162. Gift in futuro.-A gift cannot be made of anything to be performed in futuro (ills. (a) and (b), nor can it be made to take effect at any future period whether definite (ill.)(c) or indefinite (m). In this connection, illustration (c) being relevant is also reproduced below: (c) A executes a deed of gift in favour of B, containing the words "so long as I live, I shall enjoy and possess the properties and I shall not sell or make gift to anyone, but after my death, you will be the owner." The gift is void, for it is not accompanied by delivery of possession and it is not to operate until after the death of A : Yusuf Ali V/s. Collector of Tipperah (1882) 9 Cal. 138. See also Chekkonekutti V/s. Ahmed (1886) 10 Mad. 196, at p. 199. Sec. 164 of the same Book deals with the Gift With Conditions and in the last but one paragraph at page 133 it has been stated as under: Mohamedan law makes a distinction between the corpus of the gift (Ayn) and the usufructs (Manafi). A reservation of rights in manafi, so long as the Ayn is transferred, does not render the gift bad. If however, possession of the corpus is reserved, the gift will be bad Mundayat Vedake V/s. Chiru Kandan 1971 K.L.J. 796 (Emphasis supplied). 12. A reservation of rights in manafi, so long as the Ayn is transferred, does not render the gift bad. If however, possession of the corpus is reserved, the gift will be bad Mundayat Vedake V/s. Chiru Kandan 1971 K.L.J. 796 (Emphasis supplied). 12. On execution of Hinhayati deed in 1958, Bibi Saira was given possession of the property in dispute with the right to have usufruct of the same till her life. Clause 8 of the said deed provided that after her death the whole property will devolve on the defendant-appellant. The defendant-appellants case is that by providing for devolution of the property on him and his heirs after the death of Bibi Saira, Naziruddin has made a gift of his property in his favour. It is not possible to accept this submission. By Hinhayati deed neither the property was transferred to the defendant-appellant, nor was he given its possession. It is the case of gift in futuro which is to take effect in future. Such a gift is not permissible under the Mohamedan law. The resultant position is that Bibi Saira and after her death, her heirs (plaintiff and defendant No. 6) are entitled to 1/4th, share in the property of Naziruddin and the remaining 3/4th, share is liable to go to the defendant-appellant who is the nephew of Naziruddin. 13. The last question is also liable to be decided against the defendant-appellant on account of admission made by him in the previous litigation and other documents/deeds executed by him admitting 1/4th share of Bibi Saira in the property of Naziruddin. The learned Single Judge has dealt with this issue in detail with whom we agree. It is, therefore, not necessary for us to make any further comment in this connection. 14. This appeal lacks merit and is accordingly dismissed. No costs. A.K.Prasad, J. 15 I agree.