K P KHADER Vs. K K P KUNHAMINA

JUDGEMENT

(1.) COUNSEL arguing for admission of his second appeal has placed me under an embarrassing obligation to him because at my instance he has worked up the point raised with assiduity and academic flavour and argued it in the spirit of amicus curiae, knowing full well that this very forensic proficiency would boomerang on his client's prospects in the appeal.

(2.) THE survival value of the doctrine of musha in the muslim Law as applied in India is the subject mooted in the second appeal. THE courts below have declined to disturb the efficacy of the gift but counsel has chosen to challenge its validity, again, here on the ground that it is one in favour of a plurality of donees of undivided shares in property which is capable of division. THE facts are admitted but the question is whether Ex. 1 will fail in law because the parties are Muslims who must pay the penalty of invalidation of their gifts which are musha, although their brothers in other religions in India or elsewhere in the world are free from any such curious trammel.

(3.) THE Judicial Committee of the Privy Council observed as early ILR. as XI Allahabad 460 that "the doctrine relating to the invalidity of gifts of musha is wholly unadapted to a progressive state of society, and ought to be confined within the strictest rules". In ILR. 35 calcutta 1 their Lordships of the Privy Council quoted with approval these observations about musha and excluded its application "to shares, companies and free-hold property in a great commercial town". In AIR. 1934 Bombay 21 tyabji J. went into the original texts of the Muslim Law with the exhaustiveness of a researcher, if I may say so with great respect, and pointed out how Abu Haneefa alone took the view supporting musha while Abu Yusuf and muhammed held a contrary opinion and where there was a difference of opinion amongst the authorities the court had the power to select that one which was most in consonance with justice. This latter rule has been thus stated in the taqbatul Hanafia: "when Abu Hanifa is on one side, and Abu Yusuf and muhammed on the other, the mufti is at liberty, if he chooses, to follow the opinion of the latter two. But if the one or the other is of the same opinion as Abu Hanifa, the mufti is obliged to prefer that opinion, unless jurists of authority have declared their opinion to the contrary. " THE learned judge expressed himself strongly against the doctrine of musha and observed " there is the least doubt in my mind that a gift may be validly made at the present day in India to two donees, notwithstanding the fact that the two donees are to hold the property as tenants in common. I am emphatically of opinion that whether the shares given to the donees be equal or unequal, once the donor has parted with complete possession in favour of the donees, the donees become the transferees of the property, & the gift is complete". In AIR. 1948 Bom. 61 a Division Bench of that Court, while not repudiating the doctrine altogether, noticed that ". . . . the Courts are always reluctant to enforce it, and in most cases we imagine that it would not be necessary to enforce it, assuming that the rigidity of the rule as stated in Mulla's Mahomedan Law is not accepted. " A Division Bench of the Madras High Court in AIR. 1960 madras 447 declined to apply the rule by arguing that the reason for the rule being based on possible confusion the rule could not apply where no confusion of rights could arise. THE court went to the extent of stating that even if musha applied in some limited cases, a stranger cannot invoke the rule. Balakrishna aiyar J. quoted with approval the following observations of Din Mohammad J. in air. 1936 Lah. 92: "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 adapt the rule to its new environments and so to interpret it as 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 manner 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. "