JUDGMENT: The defendants 2 to 4, 8 and 9 in O.S. No.618 of 1982 on the file of the District Munsif Court, Dharapuram preferred the present second appeal, aggrieved against the judgment and decree made in A.S. No.29 of 1987 dated 10.8.1988 on the file of the Subordinate Court, Dharapuram reversing the judgment and decree of the trial Court dated 26.2.1987. 2. The case in brief is as follows: The plaintiffs filed the suit for declaration that the first defendant had only life interest in respect of the suit property without any power of alienation. The suit property belongs to the plaintiffs first defendant, and defendants 3 to 9 by virtue of the Hiba executed on 7.3.1950 by one Vellayappa Ravuthur. The first defendant is the husband of defendants No.2. Plaintiffs 1 and 3-8 are the children of the first defendant. Defendants 3 to 9 are the children of the brothers of the first defendant. First defendant, defendants 3 to 9 and the mother of the first defendant are entitled to enjoy the property only for their life time as per the document dated 7.3.1950. Nahoor Meeran Rawuthar, father of the first defendants died four months prior to the filing of the suit and the mother of the first defendant also died in the year 1976. They have no power whatever to mortgage or sell or encumber the property in any way. The first defendants had 1/9th share right only in the property and after his long life time. The legal heirs are entitled to get absolute rightly of the property. After the lifetime of the first defendant, the plaintiffs are entitled to get possession in respect of the 1/9th share. Partition deed was created on 15.7.1970 and proper share was allotted to the first defendant and as such the share of the plaintiffs will be considerably reduced. The partition deed is not binding on the plaintiffs. Now the property allotted to the first defendant has been conveyed to the second defendant on 10.7.1974, fraudulently affecting the rights of the plaintiffs. They will not bind the share of the plaintiffs. The plaintiffs will file separate suit to get possession of the property after life time of the first defendant. The first defendant was acting against the interest of the plaintiffs and hence the suit. 3. They will not bind the share of the plaintiffs. The plaintiffs will file separate suit to get possession of the property after life time of the first defendant. The first defendant was acting against the interest of the plaintiffs and hence the suit. 3. The first defendant filed a written statement admitting the execution of Hibba by his father on 7.3.1950 and also admitted the life enjoyment granted to him. Subsequently, they have also partitioned the property under a separate document dated 15.7.1970 and it was executed bona fide. The second defendant has not paid the sum of Rs.6,000 to the first defendant as mentioned in the document. The partition deed will be valid till the life time of the first defendant. The plaintiffs have got only vested reminder right in the property. It is true that the first defendant has conveyed his right to the second defendant under a separate document dated 10.7.1974. The notice issued by the plaintiffs has been suitably replied. There is no case of action for the plaintiffs to file the suit. 4. The second defendant filed the written statement adopted by defendants 3, 4 and 7 to 9. The sale was effected by the first defendant only for the benefit of the family and to discharge the family debts. The plaintiffs and the first defendant were members of one family. Now the plaintiffs have been set up by the first defendants to file the present suit. 5. The sixth defendant filed a separate written statement that during the life time of the first defendant, the plaintiffs are not entitled to claim any right and as such the suit is maintainable. 6. Defendants 3, 4 and 7 to 9 also filed a separate written statements contending that the plaintiffs have no right to file the suit. They are admitting the settlement deed referred to in the plaint and it has not come into force. It is a void document under law. The first defendant and defendants 3 to 9 Raheema Bibi and Nahoor Meeran are absolutely entitled to the property. The clauses and recitals in the settlement deed are ab initio void and the plaintiffs cannot claim any right or title for the suit property upon the recitals. The plaintiffs also have no right to question the partition dated 15.7.1970. The first defendant and defendants 3 to 9 Raheema Bibi and Nahoor Meeran are absolutely entitled to the property. The clauses and recitals in the settlement deed are ab initio void and the plaintiffs cannot claim any right or title for the suit property upon the recitals. The plaintiffs also have no right to question the partition dated 15.7.1970. The suit has not been valued properly and as such it is liable to be dismissed. 7. The trial Court framed there issues and on behalf of the plaintiffs, P.W.1 was examined and Ex.A-1 to Ex.A-7 were marked. On the side of the defendants, D.W.1 was examined, and no documents were marked. The trial Court dismissed the suit and aggrieved against this, the plaintiffs preferred A.S. No.29 of 1987 on the file of the Subordinate Court, Dharapuram and the learned Judge after hearing the parties, allowed the appeal, set case the judgment and decree of the trial Court and granted of the relief of declaration and alleged against this, the appellants have come forward with the present second appeal. 8. At the time of admission of the second appeal, the following substantial question of law was framed: “Whether the lower appellate Court has correctly interpreted Ex.A-1 and applied the relevant provisions of Mohammedan Law.” 9. Heard the learned counsel for the parties. 10. It is the specific case of the plaintiffs that the first defendant was given only life interest in respect of the property without any power of alienation under the Hiba executed on 7.3.1950 by Vellyappa Rawuthar. The relationship between the parties is practically admitted. The first defendant and defendants 3 to 9 have also effected partition on 15.7.1970, but proper share was not allotted to the first defendant and the plaintiffs are entitled to the vested reminder after the lifetime of the first defendant. Their share will be considerably reduced. Now the first defendant had also conveyed the property to the second defendant on 10.7.1994, fraudulently affecting the rights of the plaintiffs and as the first defendant had also life interest in the property, he has no power of alienation and hence the plaintiffs sought the relief of declaration. 11. The first defendant along contested the first and admitted the execution of Hiba on 7.3.1950 and also admitted that life enjoyment was given to him. 11. The first defendant along contested the first and admitted the execution of Hiba on 7.3.1950 and also admitted that life enjoyment was given to him. He also admitted the subsequent partition deed dated 15.7.1970 and was executed bona fide. The partition deed will be valid till his life time. It is true that the first defendant had conveyed his right to the second defendant under separate document dated 10.7.1974. The first defendant, defendant 4 and defendant 7 to 9 contended that the plaintiffs have no right to file the suit and the settlement deed has not come into force and it is a void document under law. The clauses and recitals in the settlement deed are void, and the plaintiffs cannot claim any right or title in the suit property based upon the conditions imposed in Ex.A-1. 12. Ex.A-1 is the xerox copy of the Hiba executed by the Vellayappa Rawuthar dated 7.3.1950 and Ex.A-2 is the registration copy. Ex.A-3 is the partition deed dated 15.7.1970. Ex.A-4 is the sale deed executed by the first defendant in favour of the second defendant. 13. The trial Court relying upon a passage in the 18th edition of Mohammedan Law by Mulla at page Mulla at page 175, wherein it is stated 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.” “Restaurant against alienation: In the case of a gift, a restraint against alienation, whether absolute partial, is void.” It is only under such circumstance, the trial Court dismissed the suit filed by the plaintiffs. 14. The plaintiffs preferred appeal before the lower appellate Court, and the lower appellate Court came to the conclusion that absolute gift was not given to the first defendant and what was given under Ex.A-1 and Ex.A-2 was only a life interest in the property and they have no power of alienation or encumbrance and hence granted the relief of declaration in favour of the plaintiffs. Aggrieved against this, defendants 2 to 4 and defendants 8 and 9 have preferred the second appeal. Later defendants 2 and 3 died and the legal heirs were also impleaded as appellants 6 to 9. Aggrieved against this, defendants 2 to 4 and defendants 8 and 9 have preferred the second appeal. Later defendants 2 and 3 died and the legal heirs were also impleaded as appellants 6 to 9. the main substantial question of law raised by them was relating to the interpretation of Ex.A-1 and the application of the relevant provisions of Mohammedan Law. Whether the condition is Ex.A-1 would be valid under law and if that be so, whether the plaintiffs have got locus standi to question the alienation made by the first defendant in favour of the second defendant. If ultimately it was held that the condition is void, then it is open to the first defendant to alienate the properties and as such the plaintiffs cannot question the same and whether the suit is liable to be dismissed. 15. The parties are governed by Mohammedan Law is admitted. The learned counsel for the appellant relied on a judgment reported in V.N.Annamalai Reddiar v. Gulshma Bibi, A.I.R. 1955 Mad. 600, wherein it has been held that it is a settled Mohammedan Law 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 condition were attached. This decision is applicable to the case on hand. 16. The learned counsel for the appellant also relied on a judgment reported in Mrs.Hazara Bai v. Mohammed Adam, (1977)1 M.L.J. 291 , where in it was held that if the document in terms creates only a life estate, there is no warrant to construe the same as one creating an absolute estate which a condition against alienation, on the theory that life estates by way of gift were unknown to Mahomedan Law. If such theory holds good, under a document creating a life estate the donee would get nothing and not an absolute estate. It should be get nothing and not an absolute estate. It should be taken to be settled law that if in a Mahomedan gift, a life estate is created, it would take effect out of the usufruct. The analogy in this decision can also be made applicable to the case on hand. 17. It should be get nothing and not an absolute estate. It should be taken to be settled law that if in a Mahomedan gift, a life estate is created, it would take effect out of the usufruct. The analogy in this decision can also be made applicable to the case on hand. 17. Reliance is also based on the unreported judgment of this Court in A.S.No.277 of 1987, dated 9.6.2000 and the entire decision relating to a gift with condition under Mohamedan Law has been considered and ultimately the learned Judge came to the conclusion as follows: “The condition that whittles down right given by the settlor to the settlee has to be ignored or has to be held invalid...... She annexed a condition restraining alienation which is void in Muslim Law”. This decision is also applicable to the case on hand. 18. The learned counsel for the respondents relied on a judgment reported in Siddu Venkappa Devadiga v. Smt.Ranagu S.Devadiga and others, A.I.R. 1977 S.C. 890, wherein it was held that it is well-settled that the decision of a case cannot be based on ground outside the plea of the parties, and that it is the case pleaded which has to be found. There is no dispute about this principle. 19. The learned counsel for the respondents also relied upon a judgment reported in Raruba Singh v. Achal Singh and others, A.I.R. 1961 S.C. 1097, wherein it was held that the appellant should not make out new case which was not pleaded by party. They also relied on a judgment reported in Chinto and others v. Kehru and others, 2000 S.L.T. 223, wherein it was held that under Sec.100, C.P.C., High Court could only interfere if any substantial question of law arises - Question of limitation was neither pleaded, nor any issue raised or any evidence led - High Court committed error in deciding second appeal on this issue in absence of pleading by petitioner. There is no dispute about the principles enunciated in this decision and the applicability of the same depends upon the facts and circumstances in each case. 20. The learned counsel for the respondent contended that there is no plea raised by the appellant at any point of time relating to the condition imposed in the gift. There is no dispute about the principles enunciated in this decision and the applicability of the same depends upon the facts and circumstances in each case. 20. The learned counsel for the respondent contended that there is no plea raised by the appellant at any point of time relating to the condition imposed in the gift. But a perusal of the written statement filed by the defendant clearly established that a plea had been raised that the condition imposed in the gift would be void under law. When there is erroneous application of law, it is just and proper for this Court to interfere even in respect of the second appeal. In fact, the substantial question of law raised by the appellant is only with reference to the interpretation of Ex.A-1. In view of the decisions cited supra, there is no difficulty in coming to the conclusion that the conditions imposed in Ex.A-1 are void and inoperative and they will be non-est in law and hence what was given is only absolute right in the property and this being so, the first defendant has got power to alienate the same and the plaintiffs have no locus standi whatsoever to question it. The trial Court has rightly appreciated the position of law, but unfortunately the lower appellate Court misdirected itself and the finding is perverse and hence the interference is called for. 21. For the reasons stated above, the second appeal is allowed and the judgment and decree of the lower appellate Court are set aside. The judgment and decree of the trial Court are restored. However, there will be no order as to costs.