Judgment :- 1. The suit is filed for a suit for partition of ¼ share in the suit property in favour of the plaintiff. The defendants are the appellants herein. The present appeal is filed against the judgment and decree passed by the learned Additional District Judge, Puducherry, wherein the learned Judge has directed the defendants to divide the suit property into four equal shares and allot one such share to the plaintiff. 2. Following are contents contained in the plaint: The plaintiff is the legally wedded wife of the 1st defendant as per Islamic rites and terms. The marriage contract between the plaintiff and the 1st defendant was entered into between them on 18.1.2001 under a registered "Kalyana Kaditham" before the Assistant Regional Kajiar Haji S.M.Basheer Maricar of Karaikal. The 1st defendant gifted 1/4th share of the undivided property entitled by him from his deceased first wife Hariunnisa, which was in joint possession of him with other defendants and delivered joint possession to the plaintiff and put her in possession of the same in pursuance of the gift deed mentioned as Kalyana Kaditham. There is an entry in the Kalyana Kaditham that the 1st defendant has to enjoy the property till his life time and the plaintiff files the copy of the said Marriage Kaditham. The plaintiff is entitled to the absolute rights on the properties gifted to her by the 1st defendant. The suit properties are covered by the sale deeds dated 22.10.1982 vide document No.680/1982, 681/1982 registered with Sub Registrar, Karaikal and the document No.345/1978 registered with Sub Registrar, Thirunallar in relation to the suit properties standing in the name of the 1st wife of the 1st defendant viz., Hairunnissa. There were minor misunderstandings between the defendants 2 and 3 and they instigated 1st defendant to create a problem in the matrimonial living and enjoyment of the suit properties. A notice demanding partition and division of the properties to the defendants was issued on 17.3.2006 which was duly acknowledged by them. Hence the plaintiff is constrained to file the suit for partition of 1/4th share. 3. The averments in the written statement by the defendants 1 and 3 are as follows:- The alleged gift had been made for Mahr. A notice demanding partition and division of the properties to the defendants was issued on 17.3.2006 which was duly acknowledged by them. Hence the plaintiff is constrained to file the suit for partition of 1/4th share. 3. The averments in the written statement by the defendants 1 and 3 are as follows:- The alleged gift had been made for Mahr. In her pre-suit notice the plaintiff has stated that by virtue of her Kalyana Kaditham, the 1st defendant gifted his 1/4th share in the undivided property inherited by him from his deceased first wife and delivered possession. The gift purported to have been made under the Kalyana Kaditham is not valid in law. Under the Mohammedan law, three essentials are required to make a valid gift. They are 1) Declaration of gift by the donor(IJab), 2) Acceptance of the gift by the donee (Qabul); and 3) Delivery of possession (Qabda). The plaintiff had never in joint possession and enjoyment of the suit properties with the defendants as co-owners. The alleged gift deed is also hit by the doctrine of Mushaa. The plaintiff has no locus standi to file the suit. There is no cause of action for the suit. The description of the suit properties are not correct. The suit is not properly valued and proper court fee is not paid. Hence they pray for dismissal of the suit. 4. The learned Trial Judge has passed a preliminary decree for partition, as prayed for. Hence, the appellants/defendants are before this Court with this Appeal. 5. Heard the learned counsel for the appellants and the learned counsel for the respondent. 6. The following points have arisen for consideration in this Appeal:- i) Whether Ex.A1 Kalyana Kaditham viz., the gift deed made by the first defendant in favour of the plaintiff, at the time of their marriage is conforming to the principles of Muslim Law and whether it is a valid one ? ii) Whether the plaintiff is entitled to partition, as prayed for? iii) To what relief is the parties are entitled to? Points No.1 to 3: 7. The plaintiff is the second wife of the first defendant, whose marriage contract was entered into between them, by means of a Kalyana Kaditham, dated 18.1.2001, before the Assistant Regional Kajiar of Karaikkal. ii) Whether the plaintiff is entitled to partition, as prayed for? iii) To what relief is the parties are entitled to? Points No.1 to 3: 7. The plaintiff is the second wife of the first defendant, whose marriage contract was entered into between them, by means of a Kalyana Kaditham, dated 18.1.2001, before the Assistant Regional Kajiar of Karaikkal. By means of this document, which is an unregistered gift deed, the first defendant in lieu of mahr gifted away his undivided 1/4th share in the immovable properties mentioned in the document in favour of plaintiff. One Hairunnissa was first wife of the first defendant. The suit properties belonged to her. After her death, the first defendant married the plaintiff. It is profitable to have extraction of the recitals in Ex.A1, and its English translation which are as follows:- “TAMIL” 7.(a) The English translation of the above said Tamil version is as follows: "For the bridegroom by name Syed Ahmed, aged 50 years belonging to Hanafi Madhhab, S/o Abdul Aziz and Jaharaa Beevi, residing at No.7, Vandikkara Street, Karikal, In the presence of gathering of the people of the Village, convened at the house of the bride at Door No.246, South Street, Dharmapuram, Karaikal, it is proposed to give in marriage Safia Nachiyal, aged 28 years, belonging to Hanafi Madhhab, second daughter of Allah Pitchai and Salamath Nachiyal, residing at the aforesaid address. The bridegroom, the bride and the father of the bride expressed their unanimous consensus and asked myself (Assistant Regional Kajiyar), to write the Marriage Letter (Kalyana Kaditham). The bridegroom told that he inherited the properties after the death of his first wife Hairunnisa, daughter of Iburam Sha, and the same is in joint possession of the bridegroom and his two sons who were born through his first wife and he has given the properties as Mahr to his second wife for the marriage which is non-transferrable in nature and the donee from today shall enjoy the properties absolutely with all powers of alienation and he would enjoy the properties till his life time." 8. On the strength of abovesaid document, the plaintiff seeks partition in respect of her 1/4th share in the suit properties. 9. The defendants 2 and 3, are sons of the first defendant, through his first wife/Hairunnisa. 10. On the strength of abovesaid document, the plaintiff seeks partition in respect of her 1/4th share in the suit properties. 9. The defendants 2 and 3, are sons of the first defendant, through his first wife/Hairunnisa. 10. Ex.A1, receives a scathing attack from the side of the defendants on the ground that it does not satisfy the legal requirements, as codified in the Mahomedan Law. Section 285 of the Mahomedan Law defines the term "dower" as Mahr or dower a sum of money or other property, which the wife is entitled to receive from the husband in consideration of the marriage. It clarified that the dower or mahr may be given in specified sum of money or any kind of property, whether movable or immovable property. Section 149 contemplates three essential ingredients of a gift, which are extracted hereunder:- " i) A declaration of gift by the donor, ii) An acceptance of the gift, express, or implied, by or on behalf of the donee, and iii) Delivery of possession of the subject of the gift by the donor to the donee." If the said conditions are complied with, the gift is complete. 11. Mr.S.Sounthar, the learned counsel for the appellants would contend that, by reading of the recitals in Ex.A1, even though, it appears that the first two conditions are satisfied, the third condition, viz., delivery of possession was not effected, that in fact, it could not be effected, since the property is an undivided share of the first defendant and the plaintiff could not be put into physical possession of the property. 12. The next limb of the contention of the learned counsel for the appellants is that, Ex.A1, is a gift of immovable property in lieu of mahr and if delivery is intended to be effected, it should have been registered under Section 17 of the Indian Registration Act and Section 54 of the Transfer of Property Act and since, it is an unregistered document, it is not valid in the eye of law. 13. 13. Repelling the contentions of the learned counsel for the appellants, Mr.Sai Krishnan, the learned counsel for the respondent would argue that the parties to the document, an husband and wife and since they are residing in the house mentioned in the gift deed, constructive delivery would be sufficient to satisfy the requirements of law, that, a mere reading of recitals would candidly reveal that the share of the first defendant was transferred to the plaintiff and that, as per the settled position of law, a Muslim Gift, even though, it is a mahr with respect to immovable property, it does not call for registration as per the Mahomedan Law. 14. The learned counsel for the appellants, in support of his contention garners support from a decision of this Court, reported in 89 Law Weekly 378, in the case of[Muthuirulan Servai Vs. Chan Bibi and others] wherein, this Court has dealt with a circumstance, wherein, a registered deed is required for a Muslim gift. It is answered by this Court that, Mahr as a valid consideration for a "sale" has been recognized under Mahomedan Law; such transaction is a "sale" within the meaning of Section 54 of the Transfer of Property Act and will not be valid, unless, accompanied by a registered document, and that, it has to be held that the gift is inadmissible in the absence of registration. 15. In the judgment reported in A.I.R. 1978 Patna 197 [The Commissioner of Income Tax, Bihar, Patna Vs. Sayed Saddique Imam and others] it has been observed by the Full Bench as follows:- "As a result of the aforesaid discussions, it is manifest that a gift in lieu of dower debt is not a true hiba-bil-ewaz, but, really a sale and has to be by a registered instrument, as required under Section 54 of the Transfer of Property Act, if the immovable property transferred is valued more than Rs.100/-. This is in consonance with the decisions of the other High Courts as well. I would accordingly hold, in all respect to the learned Judges, that Tax case No.10 of 1968 has not been correctly decided and the decision in Mahomedan Usman Khan's case (AIR 1949 Pat 2370 has correctly laid down the law" 16. In the judgment reported in A.I.R.1991 Patna 183 (Mosst. Saimunissa Vs. Sk.Mohiuddin and others] also the same view has been reiterated. 17. In the judgment reported in A.I.R.1991 Patna 183 (Mosst. Saimunissa Vs. Sk.Mohiuddin and others] also the same view has been reiterated. 17. The learned counsel for the respondent placed reliance upon a latest decision of the Hon'ble Supreme Court reported in2011 4 C.T.C. 675 [HafeezaBibi and others Vs. Shaikh Farid (dead) by LRs and others] in which, it has been held that, it is not the requirement that in all cases, where the gift deed is contemporaneous to the making of the gift, then such deed must be registered under Section 17 of the Registration Act and each case would depend on its own facts. Their Lordships have expressed agreement with the following proposition of Mahomedan Law and held that, it is not necessary in every case that it is sine quo non for a Muslim gift of property, there must be a registration under Section 17 of the Registration Act. Following is the legal position contained in the principles of Mahomedan Law, as extracted by the Hon'ble Apex Court in the said decision in paragraph No.28:- "Mulla's Principles of Mahomedan Law (19thEdition) Page120, states the legal position in the following words;- "Under the Mahomedan law the three essential requisites to make a gift valid: (1) declaration of the gift by the donor; (2) acceptance of the gift by the donee expressly or implicitly; and (3) delivery of possession to and taking possession thereof by the donee actually or constructively. No written document is required in such a case. Section 129, Transfer of Properly Act, excludes the rule of Mahomedan law from the purview of Section 123 which mandates that the gift of immovable property must be effected by registered instrument as stated therein. But it cannot be taken as a sine qua non in all cases that whenever there is a writing about a Mahomedan gift of immovable property there must be registration thereof. Whether the writing requires registration or not depends on the facts and circumstances of each case" 18. Taking advantage of all these observations, the learned counsel for the appellants would contend that, as far as the facts prevailing in this case are concerned, registration is warranted for Ex.A1 gift. Whether the writing requires registration or not depends on the facts and circumstances of each case" 18. Taking advantage of all these observations, the learned counsel for the appellants would contend that, as far as the facts prevailing in this case are concerned, registration is warranted for Ex.A1 gift. But, in view of the law contained in the above said principles of Mahomedan Law, as accepted by the Hon'ble Apex Court, this Court holds that Ex.A1 is not compulsorily registrable and even without registration, it is valid. This Court is of the opinion that in the facts available, there is no need for registration. 19. Much was argued about the validity of the gift as regards delivery of possession. It is also contended on the appellants' side that in Ex.A1, the first defendant has retained life interest in his share of property to be enjoyed by him till his life time and after his life time, the plaintiff had to take absolutely, and hence, it is not practicable to hand over possession to the plaintiff, even though, it is recited in the document that he has transferred his share to the plaintiff. 20. In this context, the Court has to have an in depth study into the relevant provisions contained in the principles of Mahomedan Law. Section 150 deals with the delivery of possession, which provides that the taking of possession of the subject matter of the gift by the donee, either actually or constructively" is necessary to complete a gift. Further, excerpts to the provisions contained in 19th Edition of the principles of Mahomedan Law by Mulla would go to show that delivery of possession of a gift may be actual or constructive. When physical delivery of possession is not possible, constructive possession in the property may be effected. The donor must, of course, divest himself of his possession to complete the gift. The document, embodying a declaration that the property gifted has been delivered, if given and accepted by the donee is tantamount to accepting delivery of the gifted property. 21. Section 152 deals with the delivery of possession of immovable property which reads as follows:- "A gift of immovable property of which the donor is in actual possession is not complete, unless, the donor physically departs from the premises with all his goods and chattels and the donee formally enters into possession. 21. Section 152 deals with the delivery of possession of immovable property which reads as follows:- "A gift of immovable property of which the donor is in actual possession is not complete, unless, the donor physically departs from the premises with all his goods and chattels and the donee formally enters into possession. Section 152 (3) contemplates that " where donor and donee both reside in the property, no physical departure or formal entry is necessary in the case of a gift of immovable property in which the donor and the donee are both residing at the time of the gift. In such a case, the gift may be completed by some overt act by the donor indicating a clear intention on his part to transfer possession and to divest himself of all control over the subject of the gift. (i) The principle for the determination of question of this nature was thus stated by West J., in a Bombay case that "when a person is present on the premises proposed to be delivered to him, a declaration of the person previously possessed puts him into possession without any physical departure or formal entry." 22. Adverting to the oral evidence on record, relating to the delivery of possession of the property, D.W.1, the first defendant would say in his cross examination that the contents in Kalyana Kaditham are genuine and they are acting as per the recitals, that as per the recitals, he delivered his 1/4th share in the property as gift to his wife/plaintiff and that he did not pay usufructs to her when she was with him. 23. The above said evidence on the part of the first defendant divulges a fact that he had intention to deliver his share to his wife and accordingly, he transferred the same and that, the parties are acting as per the stipulations mentioned in the gift deed. The Trial Court has referred and followed a Full Bench decision of Privy Council reported in A.I.R. 35 1948 Privy Council 134 in the case of [Nawazish Ali Khan Vs. Ali Raza Khan] wherein, Their Lordships have observed that English Law recognizes ownership of land limited in duration, Muslim law admits only ownership unlimited in duration, but recognizes interests of limited duration in the use of property. Ali Raza Khan] wherein, Their Lordships have observed that English Law recognizes ownership of land limited in duration, Muslim law admits only ownership unlimited in duration, but recognizes interests of limited duration in the use of property. Further observations of Their Lordships in the said decision are as follows; "What Muslim Law does recognize and insist upon, is the distinction between the corpus of the property itself (ayn) and the usufruct in the property (manafit). Over the corpus of property the law recognizes only absolute 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 course takes effect subject to any such limited interests " 24. In A.I.R. 1979 Madras 193 [Jameela Beevi Vs. Sheik Ismail ] principles of law have been formulated as follows:- '' A life estate does not militate against the validity of the gift because the corpus of it is absolutely given over to a named individual and the condition whereby the income should be enjoyed either by the donor or his nominee does not detract from or violate the essence of a valid gift. It in a given illustration the subject matter of the gift is sliced away by the donor, or the condition or restriction contemporaneously imposed by the donor is so obvious that one would not accept it as a valid gift. The reason is obvious. By imposing such a restriction as above, the entirety of the property which is the subject matter of the gift is not given away but only a portion thereto. This is not possible to make it a valid gift. If however the restriction or the condition is such whereby a right to enjoy the income from the gifted property is contemplated, and whether such enjoyment is by the donor or by his nominee, it would not be tantamount to the taking away of a portion of the corpus of the property, but, it is only a temporary right to enjoy the usufruct therefrom." 25. In view of the above said illuminating judicial pronouncements and the salient features in Muslim personal law, it comes to light that life estate could be created in gift and it is only temporary right to enjoy the usufruct, which would not be tantamount to the taking away of a portion of the corpus of the property, where creation of limited interest in a gift by the Muslim is legally permissible. 26. In the above circumstances, in the light of the legal position holding the field, it is held that delivery of possession of 1/4th share in the suit property was delivered to the plaintiff by the first defendant and that, only for the purpose of enjoying the usufructs, the first defendant retained corpus of the property and it is only a temporary right to enjoy the usufructs, which is recognised by Mahomedan Law. It transpires that the first defendant intended to make the plaintiff to become absolute owner of his 1/4th share in the properties and hence the gift in her favour is completed. In such view of this matter, I do not find any infirmity either legally or factually in the judgment of the Court below which deserves to be confirmed and it is accordingly confirmed. I answer this point as above. 27. In the result, the Appeal Suit is dismissed without costs. Connected M.P.is closed.