MALIK MUHAMMAD QAYYUM, J.---This is a certified appeal under clause 10 of the Letters Patent from the judgment and decree of the learned Single Judge of this Court dated 19-3-1962 whereby he dismissed R.SA. No. 127/64 and upheld the judgments and decrees of the learned District Judge, Attock and Additional Civil Judge, Campbellpur dated 18-6-1956 and 31-3-1956 respectively.
2. The dispute relates to inheritance of Sher Zaman, son of Fateh 'Muhammad, who died on 18-5- 1954 leaving behind the appellant, his real brother, respondents Nos. 1 and 2, his daughters and respondents Nos. 4 and 5, his widows as his legal representatives.
3. On 21-1-1956, the appellant filed a suit for possession through partition alleging that he was entitled to 5/24 share in the estate of Sher Zaman comprising of agriculture land and a house. It was also alleged that the respondents claimed to be the owners of the properties mentioned above on the basis of two gift deeds dated 14-3-1950 allegedly executed by Sher Zaman in their favour. It was stated that the gift was incomplete as pursuant thereto, possession was never delivered to the donees and was, in any case, void having ineffective against the rights of the appellant as it was made to deprivation of all the inheritors. The learned Single Judge of this Court as also the learned Addl. District Judge and the Civil Judge found that the two gifts were legal and valid and on the basis thereof the respondents were absolute owners of the property in which the appellant has no share.
4. The sole ground urged by the learned counsel for the appellant in support of this appeal was that all the three Courts have misinterpreted and misconstrued the deed Exh.D-2 and erred in holding that it was a gift by virtue of which title in the land stood transferred by the donor to the donees. According to the learned counsel, the document does not even purport to transfer any right in praesenti in the corpus of the property and as such could not be construed as a gift.
5. The respondent's learned counsel has, on the other hand, defended the impugned judgments by arguing that the gift made by Sher Zaman in favour of the respondents was complete in all respects and even if there were some conditions attached to the gift, those. conditions and not the gift would be void.
6. Having heard the learned counsel for the parties and perused the record, we are in agreement with the learned Single Judge as also with the Courts below that by virtue of the deed registered on 14-3-1950, a complete ,and valid gift was made by Sher Zaman in favour of his two daughters and widows. On a fair construction of the document Exh.D-2, the intention of the donor to transfer the corpus of the property to the donees is clearly spelt out. The use of the following words are conclusive of the controversy:--
7. The learned counsel for the appellant, however, pointed out that there are two stipulations in the deed which are completely destructive of the claim of the respondents which were; that Sher Zaman had reserved to himself 3/4th share in the income during his lifetime arid had also imposed a condition that during his lifetime they would not alienate their land.
8. Although the learned counsel for the appellant was correct in pointing out the two conditions which were attached to the gift but, the imposition of these conditions cannot result invalidation of the gift or alter the nature of the transaction. As regards the restriction placed upon the powers of the donees to alienate the property, in law the gift takes effect notwithstanding that condition, which does not have any legal sanction. If gift is made subject to a condition which takes away its completeness the gift takes effect notwithstanding the condition. The law in this respect as stated by `Baillie' in his Digest of Mahomedan Law, Volume 1, page 546 is as under:- "All our masters are agreed that when one has made a gift and stipulated for a condition that is Fasid or invalid, the gift is valid and the condition is void."
Similarly in section 153 of Mulla's Mahomedan Law, it is stated:- "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 conditions were attached to it.
9. The exact question came up for consideration before the Privy Council in Muhammad Raza v.
Abbas Bandi Bibi (AIR 1932 PC 158) in which it was observed that a restraint against alienation whether absolute or partial in case of a gift, is void. Reference may also be made to Bahadur v. Jan Muhammad (PLD 1960 Karachi 745).
10. So far as the reservation of a share in the usufruct is concerned, such arrangement has always been considered to be valid, legal and binding between the parties and do not in any way take away completeness of or alter the nature of the transaction. It was so held by the Privy Council in Muhammad v. Fakhr Jahan (AIR 1922 PC 281). The principle has been summed up in the following words by Mulla in his "Mahomedan Law" (18th Edn.) (section 154), which reads thus:- Condition in the nature of a trust.---Where property 1s 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 simple for and obtains a right to the recurring income during his life, the gift and the stipulation are both valid. Such a stipulation is not void as it does not provide for a return of any part of the corpus as in section 154, illus (b) and (c). The stipulation may also he enforced ac an agreement raising a trust and constituting a valid obligation to make a return of the proceeds during the time stipulated. It was so held by the Privy Council in Nawab Amjid Ally v. Mohmudee Begam (b) which was a Shia case and in Muhammad v. Fakhr Jahan, which was a Sunni case."
In view of what has been stated above, we do not find any force in this appeal. It is dismissed with no order as to costs.