The Judgment of the Court was delivered by

White, C.J:— I have read the judgment which has been written by my learned brother, and I concur.

Tyabji, J.:— The plaintiffs sue for a declaration that each of the two deeds of gift, dated the 5th October 1904, Exs. A and B in the case, “was not complete and that it is incapable of conveying any property” to the donee. The deeds of gift were (so far as material) identical in terms and are translated in the following terms: “On 5th October 1904 the deed of gift known as conditional gift of house and ground is written and given to Shahi Amed Sahib …. by Ka Mahomed Ibrahim Sahib as follows……… My own house and ground, which are my self acquisition, which are now in my possession and which are situated on …… are valued at” (Rs. 3,000 in the one case and in the other case Rs. 1,500). “As I have become an old man, and as I intend that there should not be any disputes, among my heirs after my lifetime, I have this day given to you as a present the aforesaid house and ground according to the condition mentioned below out of my affection towards you. The condition is as follows: Till my death I myself will collect and take the rent of the aforesaid house and ground for my livelihood. After my lifetime you should use and enjoy the aforesaid house and ground together with their entire income, fruit trees, wood trees, water, treasure, stone, etc., with power to sell, mortgage, gift away, etc., from generation to generation ……”

2. Both deeds are executed by a father in favour of a minor son. The first issue framed in the case was as follows: “Are the deeds of gift invalid for the reasons given in para. 5 of the plaint?” The allegation in para. 5 of the plaint, to which the issue refers, is that the donor “by the terms of the said deeds of gift retained expressly the possession of the said properties with himself. The plaintiffs therefore submit that the said deeds of gift are incomplete according to Mahomedan law and are inoperative.”

3. The suit was heard by Wallis, J., who begins his judgment with the words: The main object of the suit is to question certain allegations made by a Mahomedan in his lifetime in favour of his children reserving to himself a life-interest in the subject of gift”. Wallis, J., after referring in detail to the case of Nawab Umjad Ally Khan v. Mohumdee Begum(1) and to the passage in the Hedaya, Vol. II, pp. 293 and 298 (p. 483 of the one volume edn.) came to the conclusion that the gift is valid.

4. The law governing the transfers contained in Exs. A and B is the Mahomedan law and not as laid down in the Contract Act; for though Exs. A and B are registered, “and are made on account of natural love and affection between the parties standing in a near relation to each other,” yet they contain no agreement, nor any such promise, to do anything as may be specifically enforced and as is referred to, for instance, in illustration (b), Section 25(1) of the Contract Act.

5. It seems to me that the questions involved in this case are twofold: first, whether or not the transactions purported to be made are such that under the Mahomedan law the parties have power to effectuate them by any act on their part; and, secondly, if the transactions are permissible under law, then whether the requirements of the law have been fulfilled so as to effectuate them.

6. Where gifts under the Mahomedan law are the subject-matter of a suit, it is particularly necessary to consider their validity from both aspects, though in cases, such as the present, the interdependence of the two considerations may be so great as to make it difficult to discuss them separately. Thus it may be argued, as was apparently done in Nawab Umjad Ally Khan v. Mohumdee Begum that the validity of the gift purported to be made can never be established because it is in its terms such, that there can be no transfer of possession; that the necessary requirements for the completion of the transaction are by the very terms of the gift made impossible. The requirement in question in the case referred to was transfer of possession. The Privy Council, in considering whether that requirement had been fulfilled in that case, laid down that where there is a real transfer of property by donor in his lifetime, and where the transfer is given effect to by possession being given of the “dominion over the corpus of the property,” in such a case the transfer of possession is not to be deemed the less complete or effectual because it is shown that the donor has stipulated with the donee that the recurring produce of the subject of the gift will be made over to the donor during the lifetime by the donee.

7. In coming to the conclusion they rely upon the authority of the passage in the Hedaya, which I have cited, and hold first that the corpus and the produce are distinguishable; and therefore, secondly, that possession of the produce not being given does not affect the complete transfer of the corpus; thirdly, that “if the agreement for the reservation of the interest to the donor for his life is to be treated as a repugnant condition, repugnant to the whole enjoyment by the donee, here the Mahomedan law defeats not the grant, but the condition,” fourthly, that the arrangement between the donor and the donee was founded on a valid consideration and could have been enforced in the Courts of India as an agreement raising a trust (there was no question of its being enforced as the donor had died at the time of the suit).

8. This illustrates the close connexion in cases of this nature between the question whether the transaction sought to be given effect to can in itself be considered to be permissible under the law, and the question whether assuming that it is permissible the requirements of the law for giving effect to gifts have been fulfilled.

9. It would be a truism to say that if the transaction sought to be effected is in its nature such that cannot be done which is required by law to be done for effectuating the gifts then the transaction can never be upheld as a completed gift. The difficulty arises in considering what is the exact kind of possession that must be required in order to complete and effectuate the particular gift — what particular acts must be done by the donor in order to transfer the particular subject of gift to the donee. It seems to me that two considerations must amongst others be borne in mind in deciding this question, first, the nature of the subject of the gift or when the subject of the gift consists of rights in or over some object, then the nature of that object or thing as well as of the rights themselves and, secondly, whether the donee is in need of anything being done by the Court in order that he may derive that benefit which he alleges it to be the purpose of the gift that he should derive, if I understand the theory of the Mahomedan law of gift correctly; then there is one almost unfailing test for determining whether or not the principle underlying the rules about possession is satisfied as those rules have been applied in British India, that test is whether at she time when the gift is allege I to have been completed the donee was placed in such a position that, without any further act on the part of the donor or of those representing him or of the Court, the donee can have the benefit of that which he claims. In some cases this may not be a very easy test to apply. But wherever it can be applied there remains no necessity for determining in what manner possession must be transferred in the particular case; one result of applying the test is this that if the donor has already effectuated a complete transfer to the donee, the gift is to that extent valid and complete where, on the other hand, in making a declaration of gift or in giving effect to it, the donor also promises that he will at soma future time enlarge the interest then given to the donee in such eases, if the donor at the proper time does so enlarge the interest of the donee, there is a second gift on the second occasion; but if he does not so enlarge it, then the fact that at the time of the first gift he declared that he would do so cannot by itself give any rights to the donee.

10. It would therefore seem that as a rule there cannot be such a gift that the benefit derived from it is enlarged after the point of time when the gift is made, unless there is a second gift at the time when the benefit is to be so enlarged; and where the second gift (or other enlargement of the interest) is promised to be made after the death of the donor, the promise can operate, if at all, only as a bequest.

11. Does Nawab Umjad Ally's case contravene this principle? I think not. In that case the Privy Council found as a fact, that the complete ownership of the subject of gift, the Government promissory notes, had been transferred to the donee; the donee in that case was entitled immediately on the gift to recover the interest accruing on the promissory notes and to control it. It was only by fresh acts on the part of the donee that the donor received the interest accruing on the promissory-notes from year to year, each such act might either have been considered a new gift proceeding from the donee to the donor, or as the Privy Council preferred to do, it might be considered to be done in performance of an agreement raising a trust and enforceable as such. However that might have been, the donor in that case did not come to the Court seeking the assistance of the Court to enforce the payment to him of the interest on the promissory notes and so the question of the validity or enforceability of that agreement was not before the Court. The donee was in complete possession and control of the notes; and his possession was sought to be ousted by the heirs of the donor. It was not the donee who sought the assistance of the Court to effect what he alleged to be the purpose of the gift, but the heirs of the donor came to seek the assistance of the Court for that being undone which the donor had done.

12. In considering the effect of the case in Naivab Umiad Ally Khan v. Mohumdee Begum it must be borne in mind that the subject of the gift there consisted of Government promissory notes and a complete transfer of the possession of such notes, even apart from the right to receive their income, can be made much more easily than is the case with immovable property. Still the case is an authority for the proposition that there is nothing inherently impossible in possession being transferred of the corpus of the subject of the gift though there is a stipulation that the donee will give to the donor the income of the subject of the gift.

13. Coming to the facts of the present case, it had to be admitted by the learned counsel who appeared for the respondent that the question as to whether there was any transfer of possession had not been considered in the judgment under appeal. The argument before us was that the fact that the donee in this case was a minor son of the donor raised the presumption that possession had been transferred that the possession of the father after the declaration of gift must be presumed to be possession on behalf of the son, held by the father as the guardian of the property of his minor son. Now this presumption is one illustration of the general rule that where the donee is already in possession of the subject of the gift, no transfer of possession is necessary the property of minor son would, in the ordinary course, be in the possession of his father and there would be, especially under the considerations in which the original texts of Mahomedan law were written, nothing to indicate what portion of the property in the actual possession of the father belonged to him and what to the son. In such a case declaration by the father to the effect that certain specific property was the son's or had been transferred by him to the son, when such a declaration is made before the question in dispute was raised, and without any intention to defraud or defeat or delay his creditors, would naturally be taken as strong evidence of the son's ownership of the property. In the circumstances of the case, there could be no transfer of possession following the transfer of ownership for the actual physical possession would be held by the father equally whether the owner were the father or the son.

14. This, as I take it is the principle of the presumption. The presumption cannot, it seems to me, be extended to cases where the property is of such a nature that the mere physical control over it is not the only indication as to the ownership of the property. Thus I apprehend that it would not be said that where the subject of a gift consists of promissory-notes—even were the gift to be governed entirely by Mahomedan law—a mere declaration of the gift of the promissory notes without any endorsement to the, name of the minor son would complete the gift. Where, on the other hand, the subject of the gift consists, say of an article of ornamental furniture which is kept in the house of the father, the declaration of the father may be all that can indicate who the owner of the property is. Thus in the Fatawa Alamgiri (Baillie's p. 529) it is stated: “The gift of a father to his infant child is completed by the contract; and it makes no difference whether the subject of the gift be in his own hands or in deposit with another” (when that other holds it on behalf of the father and whose possession, is the same as the possession of the father). “But if it be in the hands of an usurper, or of a pledgee or of a tenant who has hired it” (and whose control over the subject of the gift is on his own behalf, not on behalf of the father) “the gift is not lawful” (i.e, by the mere “contract” or declaration of gift—“for want of possession”)—unless it is completed by the tenants being asked to attorn to the donee: Shaik Ibhram v. Shaik Suleman(2), Sharifa Bibi v. Gulam Mahomed Dastagir Khan(3). The contract between the rules contained in the two sentences illustrates, it seems to me, the point under consideration. In the former case there is nothing else which the father can be expected to do, after the ownership of the property is transferred in the latter case the tenants being in actual possession they can be made be attorn to the donee. It is true that the attornment by the tenant is not referred to in this connexion in the Fatawa Alamgiri as a means of transferring possession: but the exercise of acts of ownership is elsewhere referred to as equivalent to holding possession. The particular acts of ownership must vary with the nature of the property and conditions of holding it in the society in question; in British India, where the property transferred is in the occupation of tenants the act consists of making the tenants attorn to the transferee. In the application of the rules to gifts of immovable property in British India, the various means must be borne in mind by which the father can indicate that he has made a transfer of the ownership of the property so as to show that thenceforward it is the son's, such as mutation of names in the municipal and other records. Some of these steps are in the nature of an assertion of ownership; others are not very clearly distinguishable from it.

15. We have nothing in the present case to show whether the father did all that he had to do or could do for the purpose of making a complete transfer. There is nothing to show if anything at all was done beyond execution of the registered deeds. It has repeatedly been held that mere registration of the property in the names of the donee does not amount to a transfer of possession: Vahazullah Sahib v. Boyapati Nagayya(4), and on the other hand it has been held that if the donor does everything that is in his power to do for transferring possession, that would be sufficient: see Mahomed Buksh Khan v. Hosseni Bibi(5).

16. For these reasons it seems to me that; the argument of the respondent cannot be accepted, that the gifts (being in favour of a minor son) were completed by the mere declaration of the father.

17. On the other hand for the appellants it was suggested that the conditions of the gifts as appearing on the face of the deeds of gift, were essentially such that the gifts could never be completed. It was urged in reply to this contention that this was a case where in effect a life-interest was reserved to the donor and that the decision in Nawab Umjad Ally Khan v. Mohumdee Begum lays down that a life interest may be reserved without affecting the completion of the gift. The Privy Council decision however cannot, it seems to me, be construed as laying down that proposition in those broad terms. It certainly seems to me that decision does not lessen the necessity of considering in every case the question whether, as a matter of fact, the gift has been completed by transfer of possession. I have already indicated some of the considerations which, in my view, ought to be borne in mind in deciding this point. The Courts will no doubt, lean towards giving validity to such transactions. As the Privy Council point out, “unless some authority had been cited to show the transaction invalid, effect should have been given to the manifest intention of the parties:” Nawab Umiad Ally Khan v. Mohumdee Begum. Still it seems to me that the transaction purported to be effected may be of such a nature as to be in itself nugatory as a gift inter vivos and impossible of effect being given to as such. Though purporting to be, a gift it may in effect be such that its validity must be tested by the rules applying to testamentary dispositions: Sayad Kasum v. Shaista Bibi(6) and Khajooroonnissa v. Roushan Jehan(7). This condition is alluded to by Beaman, J., in a very suggestive judgment reported as Jainabai v. Sethna(8), though some statements contained in that judgment seem to me to require further consideration.

18. The result appears to be therefore that on the one hand, it would be wrong in the present case to proceed on the basis that there was no necessity for any kind of possession being transferred; there must be something to indicate that the transaction was not merely a nominal one and that its operation was not postponed till after the death of the donor. On the other hand, on the materials before us, without giving to the respondents an opportunity to prove that, as a matter of fact, the gifts were completed by transfer of possession, it seems to me that it would be unsafe to say at the present stage that the gifts in their very terms were such that they could not have been completed at all; the respondents are entitled to place their case before the Court, and if they wish to adduce any evidence in support of it, I think they ought to have an opportunity for doing so. Wallis, J., has not considered whether: (1) possession of the subject of the gift's in question was in any way purported to be actually transferred by the donor to the donee; and (2) if so, in what way possession was purported to be transferred; nor (3) has he considered whether after the alleged gifts, acts of ownership were exercised over the subject of gift by the donor or the donee or by some person acting on behalf of the donee. It seems to me to be necessary that question should be considered and I am of opinion that the case should be referred back to him with a request that he should record findings on these questions after taking such further evidence as the parties may desire to adduce.

S.N/R.K

19. Case remanded.