THE HON’BLE MR JUSTICE L. NARASIMHA REDDY + Second Appeal No.668 of 2010 % 19-11-2010 Between: S.Md.Abulais and another …Appellants And S.A. Aziz & others …Respondents ! Counsel for Appellants : Sri A. Veera Swamy ^ Counsel for Respondents : Sri B.S. Reddy < Gist: > Head Note: Citations: 1986 (2) Civil Law Journal 698 Madras THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Second Appeal No.668 of 2010 JUDGMENT: The plaintiffs in O.S.No.126 of 1996, on the file of Principal Senior Civil Judge, Nandyal, are the appellants. They filed the suit for a declaration to the effect that they have vested interest in items ‘C’ to ‘G’ of ‘B’ schedule properties and for recovery of the said items from respondents 12 to 17. The facts pleaded by them in brief are as under: One Mr. Khajamiah of Nandyal had a daughter by name Makthum Bi, and son, by name, Raja Saheb. Raja Saheb had two sons, viz., Raju Bhai and Aziz, the 1st respondent herein. Aziz is the father of the appellants. Makthum Bi is said to have executed a gift deed on 09-05-1942 in favour of her brothers, creating life interest in ‘A’ schedule properties in their favour and vested remainder in favour of male children, that may be born to her brothers. After the death of Makthum Bi, her brothers are said to have divided the properties and that the ‘B’ schedule properties fell to the share of the 1st respondent, father of the appellants. Appellants alleged that the 1st respondent along with his wife, the 2nd respondent, effected sale of plaint items ‘C’ to ‘G’ carved out of ‘B’ schedule properties in favour of respondents 12 and 17, contrary to the recitals in the gift deed, and detrimental to their interests. The respondents 1 to 11 remained ex parte. The suit was contested by the respondents 12 to 17 alone. The trial Court dismissed the suit holding that the provision in the gift deed in favour of unborn persons unenforceable in law and that the appellants did not derive any rights under the said document. The trial Court dismissed the suit. The appellants filed A.S.No.17 of 2006 in the Court of III Additional District Judge, Kurnool, against the judgment and decree passed by the trial Court. The lower Appellate Court dismissed the appeal on 20-01-2009. Hence, this Second Appeal. Sri A. Veera Swamy, learned counsel for the appellants submits that the very transfer made by the 1st respondent, in favour of respondents 12 to 17 is untenable in law. He contends that the 1st respondent did not derive any absolute title under Ex.A-1 and that sale deeds Exs.A-2 to A-7 executed by him are void ab initio. It is also submitted that Ex.A-1 in so far as it created vested remainder in favour of unborn persons is not void under Mohammedan law. Sri B.S. Reddy, learned counsel for the contesting respondents, on the other hand, submits that the suit filed by the appellants herein, was collusive in nature, and there were no bona fides on the part of the appellants. He contends that the very fact that the 1st respondent, the vendor under Exs.A-1 to A-7, remained ex parte, discloses that the suit was filed as a speculative venture. Learned counsel submits that the suit was barred by limitation and that the appellants did not derive any right or title under Ex.A-1. On the basis of the pleadings before it, the trial Court framed two issues for its consideration, viz., 1) Whether the plaintiffs are entitled to the declaration of their vested interest in the schedule properties, as prayed ? and 2) Whether the plaintiffs are entitled to recover the possession, after the death of the first defendant ? The only oral evident adduced by the appellants was the deposition of the appellant No.2, as PW-1. The documentary evidence adduced by them comprised of Exs.A-1 to A-22. The 17th respondent deposed as DW-1, and no documentary evidence was adduced, on behalf of the respondents. As observed earlier, the suit was dismissed, and an appeal was filed by the appellants herein. The lower Appellate Court framed the points, which are almost the replica of the issues. The appeal was dismissed on merits. As before the trial Court and lower Appellate Court, the two issues, that arise for consideration, are, as to a) whether the appellants have derived any right or title under Ex.A-1, and b) whether they are entitled to recover possession of the properties, sold under Exs.A-2 to A-7. At the outset, it must be said to the credit of the learned trial Judge and first appellate Judge, that they have discussed the matter, threadbare, with reference to the settled principles of law, and on correct lines. The central issue for the entire litigation is, the nature and legality of the disposition made in favour of the appellants, under Ex.A-1. It hardly needs any mention that the law relating to gifts is substantially different for the persons professing Islam. Not only the facility of making oral gift is created for them, but also the manner in which a gift can be executed is totally different, altogether. The donor under Ex.A-1 gifted certain items of immovable property in favour of her brothers, including respondent No.1. However, the gift was not absolute. She has created only life interest in their favour. The vested remainder was created in favour of the male issues, that may be born to the donees. In other words, vested remainders were created in favour of unborn persons. Under Muslim Law, it is not at all permissible for a donor to create any interest in favour of unborn persons. Reference in this context may be made to the judgment of the Madras High Court in FATHIMUTHU v. GHOUSE AHMED MARACAYER AND OTHERS[1]. The appellants were not able to contradict this proposition of law. Once that is so, the recital in Ex.A-1, providing for creation of a vested remainder in favour of appellants is untenable in law. There is some difference of opinion, as to whether life interest would enlarge into an absolute right, in case, the vested remainder under the same disposition is held to be inoperative in law. Assuming that the life interest under Ex.A-1 created in favour of Raju Bhai and 1st respondent, remained intact, the appellants did not have the right to challenge the alienation made by the 1st respondent. It is only a person, who would have benefited, had life interest remained intact, that can assail the transactions. The appellants do not fall into that category. Hence, the appellants lacked the very locus to assail the sales, effected by the 1st respondent, through Exs.A-2 to A-7. The trial Court and the lower Appellate Court have dealt with the other subsidiary issues also, such as the bona fides, on the part of the 1st respondent in effecting the sales, such as family needs, etc. The concurrent judgments rendered by the trial Court and the lower Appellate Court do not warrant interference. The Second Appeal is accordingly dismissed. There shall be no order as to costs. _______________________ L. NARASIMHA REDDY, J. Dt.19-11-2010. Note: L.R copy to be marked. (B/O) KO [1] 1986 (2) Civil Law Journal 698 Madras