1. The appellants in this second appeal are the widow and the minor child of deceased Habibullah Mir and the respondent is his brother. The respondent instituted a suit in the court of the Munsiff at Srinagar for partition and separate possession of his alleged share in the suit properties which originally belonged to deceased Habibullah Mir. But Habibullah Mir had executed a deed of gift in respect of the properties in favour of the appellants on 25-1-56. The respondent challenged the validity of this gift and claimed his right to a share in the property on the ground that the gift deed was invalid. The defendants appellants resisted the suit on the ground that the gift deed was valid and that the plaintiff had no manner of right or title to any portion of the property in suit. The court of first instance found the deed of gift to be valid and binding and dismissed the suit. On appeal, the District Judge at Srinagar differed from the trial court and held the gift to be invalid. This conclusion of his was based on two grounds, namely, that the gift was of Mushaa and that there was no actual delivery of possession of the property to the donees. The donees have now come up in second appeal to canvass the correctness of the conclusion of the lower appellate court.
2. It is common ground that the gift deed was duly executed by the donor and attested by witnesses and registered. The subject-matter of the gift consists of a three-storeyed house, three stone quarries and two boats. The donor was the absolute owner of all these items of property, and the donees were his wife and minor child. It is recited in the gift deed in the most unequivocal terms that tile donor had transferred his ownership and possession of the properties to the donees. The donees have also endorsed on the gift deed itself that they have accepted the gift and duly taken possession of the subject-matter of the gift.
3. It also appears that the gift deed itself was handed over to the donees after its registration. In spite of all these factors favourable to the donees, it is contended for the plaintiff-respondent that as the property given in gift was not divided between the two donees, the gift was had being of Mushaa. Although this contention was repelled by the trial court, it found favour with the lower appellate court.
4. The learned counsel for the appellants has vehemently urged that the gift is in no way affected by the doctrine of Mushaa. I am inclined to accept this contention. It was pointed out by Sir Barnes Peacock who delivered the judgment of the Judicial Committee of the Privy Council in Muhammad Mumtaz Ahmed v. Zubaida Jan, ILR 11 All 460 at page 475, that the doctrine relating to the invalidity of gifts of Mushaa is wholly unadopted to a progressive state of society and ought to be confined within the strictest rules.
5. The reason of the rule against a gift of mushaa is based on the desire to avoid difficulty and confusion in ascertaining what precise property has been given in gift. Such difficulty or confusion might arise in a case where a donor makes a gift? of an undefined portion of his property and keeps to himself the undivided residue of the property. It would then be difficult for the donee to claim and take possession of any precise property as given to him in gift; it would be difficult to find out what property the donor really intended to give. But in a case where the donor gives away the entirety of his property to the donees without retaining any portion of it to himself there can: possibly be no room for such difficulty or confusion.
6. Even if the entire property of the donor consists of a defined share in a certain property, a gift of such defined share can validly be made without offending the principle of Mushaa. A fortiori, when the donor is the owner of the entire property and not merely of a share in it there can reasonably be no question of the gift being hit by the doctrine of Mushaa. In such a case the donor will be giving away the whole of a specified item of property to the donees and there can be no difficulty or confusion in ascertaining the subject-matter of the gift and in taking possession of it.
7. But it is argued that difficulty will arise if there are more donees than one. It is said that the donor has therefore to divide the property between the donees and that otherwise the gift will fall within the mischief of the Mohammedan Law principle of Mushaa. The position, it is urged, will be the same even if the gift deed specifically mentions that the two donees are to take the property in equal moities. This contention is based entirely on the following passage in Mulla's Muhammedan Law. Says Mulla:
“A gift of property which is capable of division to two or more persons without dividing it is invalid but it may be rendered valid if separate; possession is taken by each donee of the portion of the property given to him.”
8. As a proposition of Mohammedan Law this statement does not appear to be correct. Tyabji J. in Ebrahim Alibhai v. Bai Asi, AIR 1934 Bom 21 expressly dissented from it, relying upon Fatwa Alamgiri and Hidaya. He also cited with approval the following passage from Baillie's Mahammedan Law, Edn. 2, page 524:
“The gift of a mooshaa in property that admits of partition, to two men or to a group, is valid according to the two disciples, and invalid according to Aboo Huneefa. But it is not void; so that it avails to the establishment of property by possession.
9. Confusion on both sides in property susceptible of partition prevents the legality of gift, according to them all; and when the confusion is only on the side of the donee, it prevents the legality of the gift, according to Aboo Huneefa, though it has not that effect in the opinion of the disciples. The learned judge indicated that when two disciples are agreed, then their opinion is generally followed in preference to that of Aboo Huneefa. He further indicated that the opinion of the two disciples is more in consonance with justice. Thus, Tyabji J. held that the gift of an entire property to two or more donees is valid, notwithstanding that the donor has not divided the shares of file donees nor given them separate possession.
10. This view was accepted by a Division Bench of the Bombay High Court consisting of Beaumont C.J and Wadia J. in Musa Baba v. Badesaheb, AIR 1938 Bom 84. It was also adopted by the Patna High Court in Kaniz Fatima v. Jai Narain, AIR 1944 Pat 334 at pp. 336, 337 in the following words:
“In the case of ILR 58 Bom 254 : (AIR 1934 Bom 21) Tyabji J. has examined the subject at great length and I respectfully agree with his observations. I do not see why a donee of musha who has taken joint possession of the subject of a gift, and who finds it convenient and practicable to continue to hold that property without partition, should not be allowed to do so. All that the law is concerned to find is that before the validity of such a gift is declared the donor must have parted with complete possession in favour of the donee, and then it is the lookout of the donee as to whether he wants a partition or not.
If the donor had partitioned the property and given it to a donee in a definite share, the donee could still hold the property as a tenant in common with his co-sharers and no question could have been raised regarding the validity of the gift. The same result, in my opinion, should follow provided the donee has been found to be in possession”.
11. The Madras High Court in Kairum Bi v. Mariam Bi, AIR 1960 Mad 447 has followed the view propounded by Tyabji J. in AIR 1934 Bom 21 (Supra).
12. In Nazir Din v. Mohammad Shah, AIR 1936 Lah 92 at pp. 95, 96 Din Mohammad J. observed:
“It will be manifest from the above that the original rigidity of the rule of Musha has been considerably relaxed in its application to British India and in almost all cases, which have come up before the courts here as well as before the Privy Council, an effort has been made to adopt the rule to its new environments and so to interpret it as to make it consistent with the principles of justice, equity and good conscience.
The courts in this country have given effect rather to the spirit of the rule than to its letter and have upheld gifts in all cases in which the intention to give on the part of the donor had been expressed in most unequivocal terms, and had further been attended by all honest efforts on his part to complete the gift by divesting himself of the control over the property in such a matter as would clearly imply his divestiture in the eye of the law of the land.
The raison d'etre of this rule was the avoidance of gifts that were vague, indefinite or incomplete, and the only test that should be applied in such cases is whether the gift in question is open to any of these objections; or in other words, whether the donor has still reserved to himself a loop-hole of escape or not. If this is not so and if the donor has done all that the law of the land requires to be done to separate himself from the property, a gift of Musha will be as valid as that of property which can be physically handed over to the donee”
13. In the present case, the wife and the child of the donor were given the whole of certain specified items of movable and immovable property under a validly executed gift deed. The share to which each of the donees is entitled was specified in the deed of gift itself. And the donees accepted the gift and took joint possession of the property. The gift cannot be held to be invalid merely because an actual physical partition of the subject-matter of the gift was not made between the two donees. Such a division among the donees is not a condition precedent to the validity of the gift. The doctrine of Mushaa cannot properly be extended to a gift like the present. I hold that the gift in question does not fall within the mischief of the doctrine of Mushaa.
14. The only other ground of attack is that there was no delivery of possession of the properties to the donees. As I already stated the gift deed has expressly recited that possession of the subject-matter of the gift has been transferred to the donees. There is also an express endorsement by the donees themselves that they have taken possession of the properties given in gift to them.
15. In the face of these recitals in the gift deed the plaintiff who claims as an heir of the donor and who challenges the gift cannot succeed unless he affirmatively establishes that there was no delivery of possession to the donees in the eye of law. The learned counsel for the plaintiff respondent contended diat the onus of the proof cannot be cast on the plaintiff, but that the donees defendants have to make out that possession was transferred to them. I do mot think this argument should prevail. In ILR 11 All. 460 (Supra) Sir Barnes Peacock who delivered the judgment of the Privy Council said;
“In the deed of gift she (the donor) declared (an admission by which Usman as her heir and all persons claiming through him were bound) that she had made the donee possessor of all the properties given by the deed, that she had abandoned all connection with them; and that the donee was to have complete control of every kind in respect thereof.”
16. This passage is authority for the proposition that a declaration by a donor of having parted with, possession of the property to the donee is an admission binding upon those claiming under him.
17. The question was again before the Judicial Committee of the Privy Council in Mohammad Sadiq Alikhan v. Fakhr Jahan Begam, AIR 1932 PC 13. Sir George Lowndes who delivered the judgment of the Judicial Committee stated at page 19 as follows:
“But in the first place the deed contains the statement: “I deliver possession of the gifted property to my said wife” and this as a declaration of fact must be regarded as binding on the heirs of the donor: See ILR 11 All 460.
18. It, therefore, does not admit of doubt that the plaintiff has to prove affirmatively in the instant case that in spite of the recitals to the contrary in the gift deed possession was not delivered to the donees. As a matter of evidence I have no hesitation in saying that the plaintiff has not been able to prove it.
19. This alone is sufficient to non-suit the plaintiff. Yet Ins learned counsel strenuously urged that the mere circumstance that the donor lived as least for some period of time after the gift in the house which was the subject of the gift along with the donees is sufficient to show that there was no delivery of possession to the donees under the gift first, as a matter of fact it cannot be stated that the evidence on the record clearly shows that the donor and the donees lived together after the making of the gift in the house which was given in gift. But even if we take it that the donor and the donees lived together for some time in the house which was given in gift, I do not think it will affect the validity of the gift.
20. It must be remembered that the donor was the husband of one of the donees and the father of the other donee. In AIR 1932 PC 13 (Supra) it has been laid down that in the case of a gift by a husband to his wife the Mohamedan Law does not require actual vacation by the Husband and actual taking of separate possession by the wile. The declaration made by the husband that he has transferred possession to the wife, followed by the handing over of the gift deed to the wife, were held to be amply sufficient to establish transfer of possession to the donee. The Privy Council cited with approval the decision of West J. in Shaik Ibrahim v. Shaik Suleman, ILR 9 Bom 146 where it was laid down 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.”,
21. The Privy Council pointed out that this statement of the law followed by Sir Lawrence Jenkins in 1905 in Bibi Khaver Sultan v. Bibi Rukhia Sultan, ILR 29 Bom 468 and by the Allahabad appellate Court in Humera Bibi v. Najmunnissa Bibi, ILR 28 All 147 and by the Madras High Court in two cases. Their Lordships then proceeded to say:
“It is not necessary for their Lordships to decide in the present case whether this principle is of universal application between Mohamedan donors and donees, but they think that as between a husband and his wife who are living together it is undoubtedly a reasonable interpretation of the requirements of the law, and they adopt it as application to the case before them.”
22. The acceptable evidence in the present case shows that the donor and the donees were living together at the time of the gift in the house which formed the subject-matter of the gift and that the declaration of transfer of possession was made by the donor in that house in the presence of the donees. It also appears that the gift deed was handed over to the donees.
23. Considering the relationship between the donor and the donees, I do not think anything more was necessary to be done to effectuate a valid transfer and delivery of possession to the donees. Once there was a valid transfer of possession in the eye of law, the gift becomes complete and effective and a subsequent living together of the donor and the donees cannot affect the gift in any manner. Surely the law does not require that a Mahomedan father who makes a gift to his child or a Mahomedan husband who makes a gift to his wife of a residential house should never thereafter live in that house along with his child or wife for fear of nullifying the gift.
24. The learned counsel for the plaintiff respondent then pointed out that one of the donees is the issue of the donor and that the Privy Council decision in AIR 1932 P.C 13 (supra) applied only to the wife. I see no reasons why the principle of that decision should not apply to an issue as well. Indeed, the Patna High, Court in Mst. Kanizan v. Mst. Latifan, AIR 1939 Patna 316, applied the principle to a gift by a Mohamedan father to his daughter. The circumstance that the donee in the present case is the minor child of the donor only serves to make the gift all the more invulnerable.
25. It was pointed out as early as in Ammeroonnissa Khatoon v. Abedoonissa Khatoon, 2 Ind App 87 (P.C), that under the Mahomedan Law where there is on the part of a father or other guardian it real and bona fide intention to make a gift, the law will be satisfied without actual change of possession and will presume the subsequent holding of the property by the father donor to be on behalf of the minor donee. Vide also Munni Bai v. Abdul Gani, AIR 1959 Madh Pra 225. Over and above this legal position so favourable to the minor donee, there is also the circumstance that tile mother donee has endorsed on the gift deed soon after its execution by the father donor, that she has taken possession of the properties given in gift.
26. This assumption of possession by one of the donees who was a co-owner under the gift enured for the benefit of the other donee also, the possession of one co-owner being in the eye of law the possession of the other co-owner as well. The inescapable position is that either the donor or the adult donee was in possession. In either case the gift to the minor child would be unassailable. I have already pointed out how there has been transfer of possession to tile wife rendering the gift to her valid. The attack levelled against the validity of the gift therefore fails. In view of the foregoing this second appeal succeeds. The decision of the District Judge. Srinagar is set aside and that of the trial court dismissing the suit is restored. The appellants will get their costs in this appeal.
FE/JD.
27. Appeal allowed.