JUDGMENT
1. The suit from which these appeals arise is based upon certain acts of waste on the part of one Nawab Sayad Delawar Reza in respect of the property claimed by the Official Trustee of Bengal to be held in trust under a deed dated the 19th February 1900. This trust deed relates to an allowance of Rs. 2,000 a month payable to the Nawab by purchasers of the zemindari, who in consideration of that purchase have made themselves liable to pay this monthly allowance. Excluded from the. purchase of the zemindari was a palace and grounds measuring some 150 bighas. The acts of waste are alleged to have been committed in regard to this palace and grounds.
2. By the terms of the deed, executed in favour of the Official Trustee, the allowance is to be divided between the Nawab and certain relatives and the Nawab himself is to remain in possession of the palace and grounds during his lifetime. The actual words of the deed are–
That the said Official Trustee of Bengal shall allow the said Nawab Sayed Delawar Reza during his lifetime to reside in the said palace and to use and occupy the same and all other messuages, bungalows, land, etc., and every part thereof free of rent.
3. The defendants obtained a money decree against the Nawab and in execution thereof purchased a stable and outbuildings valued at Rs. 2,062. This they demolished and for this and other damages done to the property, a decree for Rs. 2,262 has been made by the lower Court.
4. The plaintiff also claims possession of 20 bighas of the compound which have been leased by the Nawab to the same set of defendants. The Court below has held that as the deed of endowment gives the Nawab a right to enjoy the property, the lease granted by the Nawab must be held good for his lifetime. The plaintiff’s suit for recovery of possession of the land leased has been dismissed.
5. In the lower Court the chief defence taken was that the deed was never acted upon. The lower Court decided this issue by reference to the fact that the Official Trustee received the monthly allowance and divided it in accordance with the terms of the trust. The lower Court did not specifically enter into the question whether the’ deed was acted upon in its entirety, that is to say, whether possession of the palace and compound ever vested in the Official Trustee, but it is clear from the evidence that the Official Trustee was never in fact in actual possession of the property, and this is indicated by the following passage from the Subordinate Judge’s judgment:
In short he (the Nawab) has been doing all sorts of acts of waste without any check from the plaintiff, though he was allowed only to occupy and use the palace and its compound with the buildings on it free of rent during his life.
6. Now as we understand Volume III, Chapter XXX, of the Hedaya one of the most important points in the operation of a deed of trust or gift is that possession should forthwith be delivered to the donee or trustee. This principle was recognized in Nawab Umjad Ally Khan v. Musammat Mohumdee Begum 11 M.I.A. 517 : 10 W.R. (P.C.) 25 : 2 Suth. P.C.J. 98 : 2 Sar. P.C.J. 315 : 20 E.R. 195. The whole case law on the subject has been gone into, if we may say so, exhaustively by the Hon’ble Mr. Justice Mahmood in Bahim Bakhsh v. Muhammad Hasan 11 A. 1 : A.W.N. (1888) 266 : 13 Ind. Jue. 152 : 6 Ind. Dec. (N.S) 429. There can be no doubt that a deed of gift is not valid under Muhammadan Law if possession is not given. It is suggested that in the circumstances of the present case there was no necessity that the Official Trustee should travel all the way from Calcutta to take possession of the palace. The terms of the trust showed that it was not intended that he should take physical possession of the- property. In the cases cited by the Hon’ble Mr. Justice Mahmood a clear distinction has been drawn between cases in which it was possible and the cases in which it was not possible to take possession of the property, as for instance, in the case decided in Shahazadee Hazara Begum v. Khaja Hossein Ali Khan 12 W.R. 498 : 4 B.L.R.A.C. 86. In that case the property at the time of the gift was in usufructuary mortgage to a third party. A distinction has also been drawn in cases in which the usufruct has been reserved to the donor while the donee has been regarded as in possession of the corpus of the property itself. In the case before us there was no bar to an actual delivery of possession at the time of signing the deed of gift. It cannot be said that the donor is receiving only the usufruct. He has not only been in actual possession he has actually pulled up the marble floors and iron railings and sold them and appropriated the proceeds. It is urged that an actual taking of possession would have been an idle ceremony. We cannot accept this suggestion. No ceremony prescribed by the sacred law can be deemed idle. In the case before us the ceremony would have been most valuable as putting third parties on their guard against dealing with the Nawab in respect of the property given in trust.
7. The result is that the trust deed is operative only to the extent to which possession has been taken. It is clearly divisible into two parts. Possession has been taken of the monthly allowance. The deed is operative as regards the monthly allowance. Possession has not been taken of the palace and grounds. The deed is inoperative to that extent. The plaintiff has no title in the palace and grounds. His suit should have been and now is dismissed with costs. Appeal No. 427 of 1915 is dismissed with costs. Appeal No. 468 of 1915 is decreed with costs.