Musa Baba Bondre v. Badesaheb Fakimahomed Bondre

Beaumont, C.J:— This is an appeal under the Letters Patent against a decision in second appeal of Divatia J. The plaintiff sued to recover possession of certain immovable property, which she claims under a deed of gift in favour of herself and her brother made on 9th March 1920. She claims subsequently to have acquired her brother's interest in the property. The terms of the gift appear to constitute joint tenancy as between herself and her brother, and the document recites delivery of possession to the donees and this was held to be proved by the trial Judge. The learned Subordinate Judge, who tried the case held against the inclination of his own opinion but in deference to authority that the deed of gift was invalid on the ground that it was a gift of property to two persons without dividing it between them, which he held to be invalid according to Mahomedan law under the doctrine of mushaa. The supposed rule is stated at p. 121, para. 135, of Sir Dinshah Malta's book on Mahomedan Law, Edn. 10, in these terms:

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.

2. The authority supporting that proposition, and on which the trial Court relied, is the case in 6 Bom HCR (AC) 25.1 The judgment is given very shortly by Couch C.J He says:

The Court below has correctly found against the plaintiff, on the ground that the interest of each of the donees was not denned by the gilt. That being so, the ground of want of possession does not arise.

3. He then indicated his opinion that the possession of the donees was not proved. In appeal, the District Judge confirmed the decision of the trial Court, but in second appeal Divatia J. overruled the decision of the District Judge, and this appeal is brought from Divatia J.'s decision. There are authorities, later than 6 Bom HCR (AC) 25 which deal with this question. In 7 Bom HCR (AC) 272 Sir Charles Sargent J. suggested that the question really turned on whether a gift of undivided property was a gift in joint tenancy or tenancy-in-common. He held that as in that case the deed of gift made the donees joint tenants, it was good. The question was also discussed by the Judicial Committee of the Privy Council in 16 IA 205.3 That was a case of a gift of undivided property between certain persons. But their Lordships in dealing with the rule of mushaa held that even if the gift was in its inception invalid, it was nevertheless rendered effective by possession having been taken by the donees under it, and they say that the doctrine relating to the invalidity of gifts of mushaa is wholly unadapted to a progressive state of society, and ought to be confined within the strictest limits. If a gift which is invalid in the first instance is held to be validated by possession, the rule ceases to have any considerable effect, because a gift, which is not completed by possession, would be an incomplete gift, and the Court never enforces an incomplete gift.

4. The question then came before Tyabji J. in 36 Bom LR 1148.4 The learned Judge discussed the texts and authorities in some detail, but unfortunately the case in 6 Bom HCR (AC) 25 was not referred to. The conclusion, which the learned Judge came to, was that at the present day in India under Mahomedan law a gift to two or more than two persons of land, whether as joint tenants or as tenants-in-common, if completed by possession, is valid, and I think myself that opinion is right, although it is not strictly necessary to go so far as that in the present case, which is one of joint tenancy.

5. Divatia J. followed the decision of Tyabji J. and I think that he was correct in doing so. The appeal must, therefore, be dismissed with costs.

N.J Wadia, J.:— I agree.

D.S/R.K

6. Appeal dismissed.