JUDGMENT: The question that arises for consideration in this appeal is what is the proper construction of the Ex.A-3 the Deed of Settlement. "Gift Settlement to Daughter Property Value Rs.8,750. 2. According to the plaintiff, who is the brother of the Settlee Fathima Beebi what was given was a life estate which is unknown to Muslim Law. So the Settlee got an absolute estate without the restrictive condition which is void. The Settlee’s husband had remarried even during her lifetime. She died on 4.12.1974. The Settlor, who is the mother of the plaintiff and the Settlee died on 27.3.1978. The Settlee’s husband Kamaludin died on 23.3.1982. Since the plaintiff came to know that Kamaludin had executed a Settlement Deed in favour of the respondents 1 to 8, his children through second wife, and since efforts at amicable partition proved futile, the plaintiff was constrained to seek for partition of his share. According to the plaintiff, no vested remainder was granted in favour of Kamaludin and the plaintiff is entitled to 3/4 share in the suit property which had vested absolutely with her (his) sister, the Settlee. 3. Only the defendants 2 to 5 resisted the suit. According to them, under the Settlement Deed Fathima Beebi, the Settlee, got only the right to enjoy the usufruct and, in fact, the properties were gifted to Fathima Beebi’s husband and his heirs and after Fathima Beebi’s death, the property vested in Kamaludin, the husband, absolutely who had, in turn, settled the property to the defendants and therefore, there was no property liable for partition and the suit was also barred by limitation and hence the suit had to be dismissed. 4. The learned trial Judge dismissed the suit on the ground that on a construction of Ex.A-3 what was given to Fathima Beebi was only the right to enjoy the usufruct and therefore, the restriction on enjoyment of the property under the ‘Settlement Deed’ was really no repugnant to the grant and the absolute estate in the property vested in Kamaludin and his heirs after the life of Fathima Beebi. The question of limitation was answered in favour of the plaintiff. Aggrieved by the dismissal of the suit, the plaintiff has filed the present appeal. 5. The appellant’s success or otherwise will depend upon how the construction of the document Ex.A-3 is construed. The question of limitation was answered in favour of the plaintiff. Aggrieved by the dismissal of the suit, the plaintiff has filed the present appeal. 5. The appellant’s success or otherwise will depend upon how the construction of the document Ex.A-3 is construed. If under the document, the corpus was given to the Settlee, then the Settlee will take it absolutely without any restriction, and the appellant will succeed. But if what is given to Fathima Beebi is only the right to enjoy the usufruct and the corpus to her husband, then Fathima Beebi’s right in the property comes to an end with her life and the appeal will fail. 6. According to Mr.N.V. Nagasubramanian, the learned counsel would submit that, from the recitals of Ex.A-3, it is seen that a valid gift was made in favour of Fathima Beebi as per the tenets of Muslim Law. There are three essentials of a gift under Muslim Law. (1) A declaration of gift by the owner. (2) An acceptance of the gift expressed 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. Unless these conditions are complied with, a gift is not complete. 7. All the three essentials were fulfilled so far as the gift to Fathima Beebi was concerned. According to the learned counsel however there was neither declaration nor acceptance nor delivery and therefore, there was no gift, to support the contention that a gift of the vested remainder was made to the Settlee’s husband. 8. The learned counsel submitted that if one were to construe the document as one which gifts the vested remainder to Kamaludin after the lifetime of the Settlee, such construction would be bad under Muslim Law, since there can be no gift which can take effect at a future period. The learned counsel referred to Mullah’s Principles of Mohameeden Law XVIII Edition, Sec.162, which reads as follows: Gift in futuro a gift cannot be made of anything to be performed in futuro (Illustrations A and B), nor can it be made to take effect at any future period whether definite (Illustration C) or indefinite. The learned counsel referred to Mullah’s Principles of Mohameeden Law XVIII Edition, Sec.162, which reads as follows: Gift in futuro a gift cannot be made of anything to be performed in futuro (Illustrations A and B), nor can it be made to take effect at any future period whether definite (Illustration C) or indefinite. Learned counsel in particular drew attention to illustration ‘C’ which is as follows: " ‘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’. 9. According to the learned counsel, this illustration is identical to the present case, and since what is purported to be given to the son-in-law viz., Kamaludin is neither accompanied by delivery of possession nor is it to operate until after the death of Fathima Beebi, Kamaludin got nothing under the Settlement Deed. 10. The learned counsel referred to Sec.164 from the same text which reads as follows: "Gift with a condition 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 condition were attached to it." The illustration to this Section is: "If a Sunni Mohammaden says this mansion to the Oomree (for thy life) and when thou art dead it reverts to me. The gift is lawful and the condition is void. Baillie 517; Hedya 489." "The result is that the Settlee takes an absolute interest in the mansion and not only a life interest. This is the legal effect of the gift. Similarly, if a house is given to ‘A’ for life and after his death to ‘B’, the legal effect of the gift is that ‘A’ takes the house absolutely and ‘B’ takes nothing. This is the legal effect of the gift. Similarly, if a house is given to ‘A’ for life and after his death to ‘B’, the legal effect of the gift is that ‘A’ takes the house absolutely and ‘B’ takes nothing. The same Rule applies to a testamentary gift but if the gift is not of an absolute interest with a condition of defeasance, but of a limited interest it would appear to be valid as a gift of the usufruct." The present case is similar to the aforementioned illustration and so Fathima Beebi took an absolute interest in the suit properties and there was no vested remainder. 11. The learned counsel for the appellant also pointed out that the gift to Fathima Beebi is complete, since there is a declaration by the Mother Sara Beebi that she intends to settle the property out of love and affection and other family considerations, there is acceptance by Fathima Beebi since it is not disputed that from the date of the Settlement Deed, Fathima Beebi was in possession and enjoyment of the property and more importantly, delivery was also complete as seen from the recitals in the document to the effect and confirmed by the handing over of the title deeds to fathima Beebi. 12. In contrast to this, there is nothing to show that anything was given to Kamaludin, the son-in-law under the Settlement Deed. He is not named as one of the parties in the document and there was no vesting of any property of any nature on the date of the Settlement Deed nor was there anything to signify that delivery was effected. Hence, in the absence of the three essentials of a gift under Mohammaden Law, no right in the properties can be said to have been conveyed under the Settlement Deed to Kamaludin. 13. The learned counsel for the appellant submitted that it was clear from a construction of the document that the corpus was given to Fathima Beebi. There are no words in the said document to give rise to the conclusion that Fathima Beebi was only allowed to enjoy the usufruct. She may have introduced the condition restricting her power of alienation. But since as per the canons of Mohammeden Law such a condition cannot be imposed, it should be disregarded. 14. There are no words in the said document to give rise to the conclusion that Fathima Beebi was only allowed to enjoy the usufruct. She may have introduced the condition restricting her power of alienation. But since as per the canons of Mohammeden Law such a condition cannot be imposed, it should be disregarded. 14. The learned counsel for the appellant pointed out that learned trial Judge grievously erred in importing new concepts to Mohammeden Law which are not permissible. The learned trial Judge states as follows: 15. On the contrary, while dealing with the sources of the interpretation of Mohammeden Law, "Mullah’s Text" says: "New Rules of Law are not to be introduced because they seen to lawyers of the present day to follow logically from ancient texts. However, authoritative, when the ancient doctors of the Law have not themselves drawn those conclusions.“ According to the learned counsel for the appellant, it is the duty of the Court to interpret the document as it is and if what is given is the corpus with a condition that has to be ignored while if what is given is only the usufruct then there can be a valid restrictive condition. 16. The learned counsel for the appellant would vehemently argue that it is clear on a reading of Ex.A-3 that what was given was the property entirely and not merely the right to enjoy. He referred to the following decisions: Marangami Rowthen v. Negur Meea Labhai, 24 M.L.J. 258. In this case, the Division Bench was asked to consider the effect of a Settlement Deed whereunder a life estate was given to a person with remainder to another. In this case, a Settlement Deed was executed by her husband in favour of this senior wife and son. The Division Bench accepted the contention that what was given to Nagore Meeranna Rowthar was an interest in futuro and hence invalid, since under the Muslim Law, delivery of possession is essential to a gift. The Division Bench rejected the contention that what was conveyed to Ismailammal is only the right to enjoy the usufructs during her lifetime. The learned counsel for the appellant submitted that, as in the aforesaid case in the instant case also there was no delivery of possession to the so called remainder interest holder and no right passed to Kamaludin under the document. 17. The learned counsel for the appellant submitted that, as in the aforesaid case in the instant case also there was no delivery of possession to the so called remainder interest holder and no right passed to Kamaludin under the document. 17. Next the learned counsel for the appellant referred Amjad Khan v. Ashraf Khan, A.I.R. 1929 P.C. 149: (1929)30 L.W. 91: ”All discussions regarding the question whether a grant of a life estate is inconsistent with Mohammeden Law draw their inspiration from this Privy Council decision. The husband made a gift of his property to his wife empowering her to alienate a part thereof only and directing that the property should revert to the donor’s collaterals after the death of the wife viz., the donee. The registration of the gift deed was consented to, by the donor’s named collaterals. The Privy Council held on the construction of the deed that the subject matter of the gift was a Life interest only and dismissed the appeal of the donee’s heir. Their Lordships held that the intention of the Donor is to be ascertained by reading of the deed as a whole and giving to the words the natural meaning of the language used and they enumerated the three conditions that are necessary to constitute a valid gift inter vivos under Muslim Law. (1) Manifestation of the wish to give on the part of the donor. (2) The acceptance of the donee, either implidely or expressly. (3) The taking possession of the subject-matter of the gift by the donee, either actually or constructively. The learned counsel for the appellant submitted that there were recitals in the document which warranted their Lordships to construe that the subject matter of the gift was a life interest only and that would not apply to this case.“ 18. Next the learned counsel for the appellant relied on the decision reported in Alimamma v. Amade Beevi, A.I.R. 1930 Mad. 510: (1930)31 L.W. 765, which dealt with the gift made by a Mohammeden of life estate holder, with remainder to another person. This Hon’ble Court followed the decision reported in Marangami Rowthen v. Negur Meea Labhai, 24 M.L.J. 258 referred to above. 510: (1930)31 L.W. 765, which dealt with the gift made by a Mohammeden of life estate holder, with remainder to another person. This Hon’ble Court followed the decision reported in Marangami Rowthen v. Negur Meea Labhai, 24 M.L.J. 258 referred to above. The learned Judge categorically states”I am not prepared to hold that the decision in Amjad Khan v. Ashraf Khan, A.I.R. 1929 P.C. 149: (1929)30 L.W. 91, over rules, the current of the authorities in the absence of any definite pronouncement by the Privy Council. Therefore, the learned counsel for the appellant would submit that so long as the decision in Marangami Rowthen v. Negur Meea Labhai, 24 M.L.J. 258, holds the field and has not been over ruled, the ratio will have to be followed in this case. 19. Next the learned counsel for the appellant referred: Sardar Nawazish Ali Khan v. Sardar Ali Bazah Khan, (1948)61 L.W. 578 : A.I.R. 1948 P.C. 134. “The Privy Council lays down the guideline to be followed while dealing with the gift under Muslim Law. ”......Just duty of the Court is to construe the gift. If it is the gift of a Corpus any condition which derogates from absolute dominion over the subject of the gift will be rejected as repugnant, but if upon constriction the gift is held to be one of a limited interest the gift can have effect out of the usufruct leaving the ownership of the corpus uneffected except to the extent to which is enjoyment is postponed for the deviation of the limited interest.“ 20. Next the learned counsel referred: K.Veeran Kutty v. Pathumma Kuttywmma, (1956)1 M.L.J. 195 : 69 L.W. 454(2): ”This is a decision by a Division Bench of this High Court called upon a consider the validity of a gift deed where the donor settled his property in favour of his grand children reserving to himself the right to enjoy the usufructs. The Division Bench following the pronouncement of the Privy Council held that an absolute gift of the corpus with reservation to collect the income during the lifetime of the donor is valid and enforceable, and upheld the gift deed. It was held that, it has to be remembered, that Courts are not at liberty to refuse to administer any portion of these tenets even though in certain respects, they may not sound quite modern. It was held that, it has to be remembered, that Courts are not at liberty to refuse to administer any portion of these tenets even though in certain respects, they may not sound quite modern. the interpretation which were putting on Ex.A-2 is quite in consonance with the ancient law promulgated by the Islamic Law Givers as understood and interpreted by the Courts of the highest authority.“ The learned counsel for the appellant would, therefore, submit that, no doubt, there can be a gift of the corpus to A and of the right to enjoy the usufruct to B, but when there are no words to suggest that there was an intention on the apart of the donor that only enjoyment of usufructs was given, the Courts cannot construe the document as giving a gift of the usufruct merely because there is restrictive condition regarding alienation. He would also stress that what appears to the modern mind to be reasonable cannot be imported in a case to which Mohammeden Law applies, where the ancient text and the canons laid therein have to be strictly applied. 21. Next the learned counsel referred: Wali Mohammed v. Faqir Mohammed, A.I.R. 1978 J. & K. 92 (F.B.): ”In this case, there was nothing in the gift deed to show that it was accepted by the donees. The Full Bench says, “this gift being by a Muslim in favour of his co-religionist must be under a Mohammeden Law, it must be established that it was accepted by a donee. This has not been established by the vendees.” 22. The learned counsel for the appellant, therefore, pointed out that no material has been produced either by way of oral and documentary evidence to show that Kamaludin had accepted, what we may for convenience, term as the gift of the vested remainder, nor was there any declaration by the Donor that she was gifting the property to Kamaludin nor was there any delivery of possession. The contention of the respondents that Kamaludin took the vested remainder therefore, cannot be sustained. 23. The contention of the respondents that Kamaludin took the vested remainder therefore, cannot be sustained. 23. So according to the learned counsel for appellant on a proper construction of Ex.A-3 and in view of the various judicial pronouncements that gifts of property limited in duration can be validly made only if the gift is of the usufruct alone, the Court has to construe the document as a whole bearing in mind the intention of the Settlor. When there is nothing in the deed to show that a Settlor intended to give her daughter only the right to enjoy the usufruct, the Settlee took the properties absolutely without the shackles of the void conditions and the appellant being her brother was entitled to 3/4th share in the properties. 24. The learned counsel for the respondent Ms.Pushpa Sathyanarayanan on the contrary would state that without any doubt the document has to be construed as one which would take effect from the usufruct. She also drew attention to the various recitals and the documents and state that the very fact that Fathima Beebi was not allowed to alienate the property but only permitted to enjoy the same would show that the right she got under the Settlement Deed was the right to enjoy the income, in other words the right to enjoy the manafi. 25. According to the learned counsel for the respondent, the recital in the document were a sufficient to denote a declaration of the gift of the vested remainder to the Settlor’s son-in-law and the acceptance by the wife would have to be taken as acceptance on behalf of the husband. So also, the delivery to the wife would amount to the delivery to the husband and hence all the essentials of a gift were satisfied to hold that under the same document, the daughter viz., Fathima Beebi got the right to enjoy the usufruct and the absolute estate vested in her husband. 26. The learned counsel would, therefore, submit that it was not actually a gift in futuro to the husband, but if took effect even on the date of the settlement deed. 26. The learned counsel would, therefore, submit that it was not actually a gift in futuro to the husband, but if took effect even on the date of the settlement deed. Since the corpus of the property was not given to the Settlee under the Settlement Deed, but only the right to enjoy the usufruct, and since a limited interest can be created under Muslim Law after Fathima Beebi’s lifetime, entire property went to her husband who became the absolute owner of the same. Therefore, the plaintiff got no share in the properties and could not ask for partition. 27. The learned counsel for the respondent, therefore, submitted that the finding of the trial Court that as per Ex.A-3, Kamaludin got the absolute estate in ‘A’ Schedule Property and enjoyment alone was postponed during the lifetime of his wife, was perfectly correct. In support of her submission, the learned counsel for respondents submitted that the decision reported in Amjad Khan v. Ashraf Khan and others, A.I.R. 1929 P.C. 149: (1929)30 L.W. 91, was totally in her favour and the donor in this case as in that case only intended to make and did make a gift of a life interest alone in the entire property and, therefore, the settlee got only a limited interest under Ex.A-3. 28. Next the learned counsel for the respondent referred in Mrs.Hayara Bai v. Mohammed Sait, 90 L.W. 498, wherein it was held that if in a Mohammeden gift life estate is created, it takes effect only out of the usufruct and cannot be construed as an absolute gift of the corpus with an invalid condition. In the instant case also, what was given is only the usufruct and according to the learned counsel, there was no warrant to construe the document as one creating a gift of the corpus with an invalid condition. 29. Next the learned counsel referred to judgment reported in Jameela Bevi v. Sheik Ismail, A.I.R. 1979 Mad. 193. This was a case decided by the First Bench of this Hon’ble High Court, where the donor gifted the entire corpus to the named individual reserving the right to enjoy the income. 29. Next the learned counsel referred to judgment reported in Jameela Bevi v. Sheik Ismail, A.I.R. 1979 Mad. 193. This was a case decided by the First Bench of this Hon’ble High Court, where the donor gifted the entire corpus to the named individual reserving the right to enjoy the income. Their Lordships held that the retention of the donor to enjoy the income would mean that he retained the life interest over the usufructs and gift of the corpus to the donees was held to be not a gift in futuro, but a valid gift. As in the aforesaid case, so also in the present case, according to the learned counsel for the respondent the corpus was gifted to Kalam and his heirs and the usufruct alone was given to Fathima Beebi. 30. Next the learned counsel referred to M.Syed Mydeen v. M.S. Khaja Mohideen, 99 L.W. 134. This is a case where a corpus was given to a unborn person, which is bad in law. It is not applicable to the instant case. The other references in the said decision to the decisions reported in Amjad Khan v. Ashraf Khan, A.I.R. 1929 P.C. 149: (1929)30 L.W. 91 and Sardar Nawazish Ali Khan v. Sardar Ali Bazah Khan, (1948)61 L.W. 578 : A.I.R. 1948 P.C. 134 have already been considered in paragraphs supra. 31. Next the learned counsel for the respondent referred to Ismail Gani v. Maim Ponn Pattu Beevi, (1998)3 M.L.J. 65. That was a case where a mother gifted the property to her daughter and contemporaneously the daughter executed a deed in favour of the mother making her right to enjoy the income during her lifetime and imposing on herself an embargo on alienation during her mother’s lifetime. This Honourable Court upheld the validity of the gift in favour of the first respondent. 32. The other decision referred to by the learned counsel for the respondent is in Abdul Samed v. Rabia Bibi and others, (1998)3 L.W. 485 is to the effect that delivery of possession is not always necessary when the donor and the donees are living under the same roof and unequivocal and bona fide declaration was held to be sufficient. 33. The other decision referred to by the learned counsel for the respondent is in Abdul Samed v. Rabia Bibi and others, (1998)3 L.W. 485 is to the effect that delivery of possession is not always necessary when the donor and the donees are living under the same roof and unequivocal and bona fide declaration was held to be sufficient. 33. Lastly, the learned counsel referred to the decision reported in Chandma Bibi v. Sheik Mohammed Sahib and others, (1997)1 L.W. 391 in which the learned Judge after referring in detail the views of the various texts in the Muslim Law and the important decision holds that: "a reading of the entire document makes it clear that it is not a gift under Muslim Law but it is a document which creates life interest or limited interest the ownership being retained by the owner himself also "if a life estate is created at the most, it can be said that the right of enjoyment or right of usufruct is given to the donees and ownership is retained by the owner himself. Such a gift cannot be enlarged nor can it be contended that the gift is on the corpus with the condition." 34. For the aforesaid reasons and as per the decisions referred to above the learned counsel for the respondent would say that all that Fathima Beebi got was only a life interest in the usufructs and the absolute estate vested in Kamaludin and his heirs and therefore, the suit had been rightly dismissed. 35. How should this deed be constructed? Courts should interpret the deed so as to effectuate the intention of the parties without violating either the provisions of law or the rule of construction. It is important here to consider whether Mohammeden Law recognises is the concept of life estate and vested remainder. 36. In the decision reported in Sardar Nawazish Ali Khan v. Sardar Ali Bazah Khan, (1948)61 L.W. 578 : A.I.R. 1948 P.C. 134, their Lordships have held that: "....in dealing with th gift under Muslim Law, the first duty of the Court is to construe the gift. 36. In the decision reported in Sardar Nawazish Ali Khan v. Sardar Ali Bazah Khan, (1948)61 L.W. 578 : A.I.R. 1948 P.C. 134, their Lordships have held that: "....in dealing with th gift under Muslim Law, the first duty of the Court is to construe the gift. If it is a gift of the corpus, then any condition which derogates from absolute dominate 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 except to the extent to which employment is postponed for the duration of the limited interest." 37. All the decisions that have been referred to above without exception have uniformly held that while interpreting a document, the entire document has to be read as a whole. 38. Now, a reading of Ex.A-3 clearly shows that the Settlor intended to benefit her daughter. It is also stated therein that the donor’s possession and enjoyment of the properties would henceforth vest with the donee viz., Fathima Beebi. The next sentence is a crucial sentence. As per this clause (which is translated from the Tamil original). "you shall enjoy the property from this date without alienating the property. After you, the under mentioned property shall go to your husband and his heirs and not to me or my heirs." It is clear from the recitals of this document that the Settlor had divested herself of all her rights and interest in the properties. The title of the document, the preamble portion of the document and the declaration all spell out and the clear and unambiguous intention on the part of the Settlor to benefit her daughter the Settlee and to provide something for her. Is there an intention on the part of the Settlor as seen from a reading of the deed to give the corpus to Kamaludin and his heirs and the usufructs alone to Fathima Beebi? Halsbury’s Laws of England, IV Edition relating to Deeds at para 1460 is as follows: “The function of the Court is to ascertain what parties meant by the words which they have used. Halsbury’s Laws of England, IV Edition relating to Deeds at para 1460 is as follows: “The function of the Court is to ascertain what parties meant by the words which they have used. To declare the meaning of what is written in the instrument, not of what was intended to have been written; To give effect to the intention as expressed, the expressed meaning being, for the purpose of interpretation equivalent to the intention”. 39. There are no words in the said document to express an intention on the part of the Settlor to give to Kamaludin and his heirs, the larger right viz., absolute estate, postponing only the limited right of enjoying the usufruct, since it was given to Fathima Beebi for her lifetime. 40. All the decisions referred to above in which the documents were construed as granting a limited interest, there were to support such a construction. In the decision reported in Amjad Khan v. Ashraf Khan, A.I.R. 1929 P.C. 149: (1929)30 L.W. 91, there is a clear recital that the Settlee shall not possess any power of alienation but he shall remain in possession thereof for lifetime and it also states that the donor’s collaterals to whom the property gifted would revert after the donee’s lifetime would become owners with full proprietary power. 41. Next in th decision reported in Mrs.Hayara Bai v. Mohammed Sait, 90 L.W. 498, the document clearly states that the transfer is for the Settlee’s life and, thereafter, to her children absolutely. Therefore, it was held that it was a life interest. The intention of the settlor that she is giving the larger right to one person and a limited interest to another is clear. 42. In the decision reported in Jameela Beevi v. Sheik Ismail, A.I.R. 1979 Mad. 193, there is a clear unambiguous recital that the life interest holder was to utilise the income from the property. Hence there cannot be any doubt that corpus was not granted to the limited interest holder and that the gift should take effect out of the usufruct. 43. In the decision reported in Chandma Bibi v. Sheik Mohammed Sahib, (1997)1 L.W. 391 , it is clear that the document that came up for interpretation contained no recital that the donor divested himself of the ownership of the property. 43. In the decision reported in Chandma Bibi v. Sheik Mohammed Sahib, (1997)1 L.W. 391 , it is clear that the document that came up for interpretation contained no recital that the donor divested himself of the ownership of the property. So in this case also, the ownership never passed on to the State and therefore, it is clear that only the right to enjoy the usufruct was given to the Settlor and her husband. 44. As seen earlier, there are no recitals in Ex.A-3 to show that what was given to Fathima Beebi was a limited right and the larger right was given to her husband. The divesting by the Settlor of all her rights and interest are only in favour of the settlee and no one else. If the document does not spell out such an intention, the Court cannot read between the lines to presume that such an intention existed. 45. In the reply notice, Ex.A-9, it is stated that the property has become the property of Kamaludin after the death of Fathima Beevi. Similarly, in the written statement also, the defendants has reiterated the same stand. It is, no doubt, true as stated in the various decisions as well as in the Muslim Law Text that it is possible for ‘A’ to make a gift to the corpus to be reserving the right to usufruct to himself or he can make a gift of a limited interest to ‘B’ retaining the ownership of corpus with himself or he cam make a gift of the life interest to ‘A’ and a gift of the corpus to ‘B’. But the transfer inter vivos should be a transfer in praesenti as seen from the illustration ‘C’ to Sec.162 of Mullah’s Text, a gift which does not operate until after the death of certain person is void, since it has not accompanied by delivery. Therefore, even if one were to construe the recitals as a gift to Kamaludin, it can at best be a gift in futuro and hence void. But the recitals of Ex.A-3 do not reveal any intention on the part of the Settlor that she intended to give to the Settlee only a limited interest in the properties, or that she intended to give Kamaludin and his heirs an absolute interest. But the recitals of Ex.A-3 do not reveal any intention on the part of the Settlor that she intended to give to the Settlee only a limited interest in the properties, or that she intended to give Kamaludin and his heirs an absolute interest. In fact, there are no words signifying the intention of the Settlor that Kamaludin and his heirs would have an absolute right. No words like or synonymous to this effect are used with reference to Kamaludin and his heirs. Similarly even as regard the gift of Fathima Beebi, there are no words to show that her interest comes to an end with her lifetime. In the various decisions referred to above, the documents contained clear words to signify a life interest like “for her lifetime” or “to utilise the income therefrom” etc. whereas in this case all that the Settlor says is, after her daughter, the property shall go to Kamaludin and his heirs and not to the Settlor or her heirs. 46. To cut down the full right given to Fathima Beebi merely because of the imposition of the restrictive condition or to stretch the word to mean a gift of the vested remainder would result in a procrustean interpretation. On the other hand, the particular sentence when read as a whole is to that effect that after the Settlee, the property should go only to her husband and his heirs and not to the Settlor or her heirs. It is a recital indicating divestiture and the conjunctive term cannot be ignored. So rather than indicating a gift of the vested remainder, this clause appears to be introduced more to stress that the Settlee (sic. settlor) has divested herself or anybody claiming under her from inheriting the property. The recitals indicating declaration and vesting are also clear and categoric. The Settlor gives the property which is in her and to the Settlee’s and . Therefore what she intended to give was the absolute right with a condition that the Settlee cannot alienate the property. If the deed is read as a whole, the clause referring to Kamaludin and his heirs cannot be interpreted to express the intention to give he vested remainder or the corpus to them and in fact the three essentials of a Muslim gift being absent, such interpretation will not be correct. If the deed is read as a whole, the clause referring to Kamaludin and his heirs cannot be interpreted to express the intention to give he vested remainder or the corpus to them and in fact the three essentials of a Muslim gift being absent, such interpretation will not be correct. The only natural interpretation of the deed is apparent from the intention of the Settlor to benefit only the daughter and since the Settlor had also parted with all her rights and given it to the Settlee, the deed has to be construed as a gift of the corpus. Therefore, the restriction against alienation is bad. 47. The decisions referred to by the learned counsel for the appellant are squarely applicable to the facts of this case. In Marangami Rowthen v. Nagur Meera Labbai, 24 M.L.J. 258 which has already been extracted above the recitals in the deed are some what similar to the documents Ex.A-3 and the learned Judges had held that the document conveyed a life estate of the donee and by operation of law, she took an absolute estate. In fact, in that document, there is a clause which says that the donee shall enjoy it during her lifetime. Inspite of this, the learned Judges who constituted the Division Bench held that this cannot be construed to be a gift that should operate out of the usufruct but as a life estate which would mean that the donee took an absolute estate. For the same reasons, Ex.A-3 should also be held to convey the interest in the corpus and therefore, since there can be no HIBA of the corpus subject to any restrictive condition and the condition that has to be ignored. 48. As in the aforesaid case so also here since delivery of possession is essential to a gift, and since there is no delivery in praesenti to Kamaludin, there was no valid gift to him. As in the decision reported in Alimamma v. Amade Beari, A.I.R. 1930 Mad. 510 which was also a gift made by a Mohammeden for life estate for a remainder to another person, here too the donee must be held to take the property absolutely. As in the decision reported in Alimamma v. Amade Beari, A.I.R. 1930 Mad. 510 which was also a gift made by a Mohammeden for life estate for a remainder to another person, here too the donee must be held to take the property absolutely. The learned Judge in the above case had referred to the decision reported in Marangami Rowthen v. Negur Meea Labhai, 24 M.L.J. 258 and held that the condition regarding alienation was invalid and that the gift in favour of the donees gave them an absolute interest. The learned Judge was also not prepared to hold that the decision in Amjad Khan v. Ashraf Khan, A.I.R. 1929 P.C. 149: (1929)30 L.W. 91 overruled the current of the authorities. On the other hand the learned Judge followed the decision reported in 24 M.L.J. 258 to hold that where a gift was made by a Mohammeden of a life estate with remainder to another person, the donee took the property absolutely, the further condition being treated as void. The learned Judge also held that the provisions made in the document that came up for construction before him contained the clauses relating to succession which is unknown to Mohammeden Law. The ratio is squarely applicable to the instant case. 49. A passage from Nawazish Ali Khan v. Ali Raza Khan, A.I.R. 1948 P.C. 134 extracted in para.36 above concisely states the law regarding gifts under Muslim Law. Therefore, Ex.A-3 conveys a life estate to Fathima Beebi with some conditions attached. Since in the words of the Prophet “when you have made an absolute gift of a house you cannot cut it down by conditions repugnant to it. You cannot restrict the use of the property to the lifetime of a man in such a case.” 50. The condition that whittles down the right given by the Settlor to the Settlee has to be ignored or has to be held invalid. The Settlor - Sara Beebi in Ex.A-3 gives her daughter and declares that this is for her benefit and also hands over all the title deeds to the property. There is nothing to show that she intended to give her a less than complete right of ownership. She annexed a condition restraining alienation which is void in Muslim Law. 51. The Settlor - Sara Beebi in Ex.A-3 gives her daughter and declares that this is for her benefit and also hands over all the title deeds to the property. There is nothing to show that she intended to give her a less than complete right of ownership. She annexed a condition restraining alienation which is void in Muslim Law. 51. As discussed in the aforesaid paragraphs, the deed can be interpreted only in such a way as to give effect to the intention of the executant and the Settlor’s intention was only to benefit her daughter and to give her all the rights in the property that she had, therefore to hold that what was given to the Settlee was only the right to enjoy the usufructs is not the correct construction of Ex.A-3. The plaintiff will, therefore, have to succeed. 52. For the aforesaid reasons, the judgment of the trial Court is set aside and the appeal is allowed. No costs.