KUNHIMOIDEENKUTTY Vs. ABDULKHADER

JUDGEMENT

(1.) The property involved in this litigation originally belonged to one Ukkayyakutty Umma, the mother of defendants 1 to 3 and the wife of the 4th defendant Ukkayyakutty Umma had another daughter by name Katheessa. After the death of Ukkayyakutty Umma, Katheesa also died. Thus the estate fell to defendants 1 to 4. The 4th defendant, who inherited a share in Katheesa's estate with respect to the suit property executed Ext. A9 conveyance in favour of defendants 1 and 2 in this case. Subsequently the 4th defendant conveyed his entire share in the suit property in favour of the plaintiff, his grandson, under Exts. A1 and A2. The suit was instituted for partition and recovery of the plaintiff's share on the strength of Exts. A1 and A2. Defendants 1 to 3, who mainly contested the suit, contended that the 4th defendant did not derive any share in the estate of Ukkayyakutty Umma since their marital relationship came to an end prior to the death of Ukkayyakutty Umma and that Exts. A1 and A2 are invalid being gift of Musha property. These contentions were repelled by both the courts below, and a preliminary decree was granted in favour of the plaintiff. That has led to this appeal by defendants 1 to 3.

(2.) In view of the concurrent decision of the courts below regarding the subsistence of the marital relationship between Ukkayyakutty Umma with the 4th defendant, it is no longer open to the appellants to contend that the 4th defendant did not derive any share in the suit property. I have no hesitation to confirm the decision of the courts below to the effect that the 4th defendant also obtained a share in the suit property on the death of his wife Ukkayyakutty Umma.

(3.) The only other question that survives for decision is whether Exts. A1 and A2 should fail because they constitute a gift 'musha' property. Musha means undistributed or common; in legal language it refers to undivided portions of property and in particular to such property which forms the subject matter of a gift. That in a general sense the property covered by Exts. A1 and A2 partakes the nature f 'musha' cannot be seriously disputed. But the further question is whether because of that broad characteristic of the suit property Exts. A1 and A2 should fail by the application of the rule that the gift of 'musha' property is not valid unless it was followed by partition and delivery of possession of the share gifted. I may for the sake of convenience refer to the whole principle as the 'musha' rule. The real scope of this rule had come up for the consideration of courts from considerable time back. As far as I could see the rigidity of the rule has been relaxed by judicial pronouncements from two different angles. One line of precedents beginning with the decision of the Privy Council in Sheik Muhammed Mumtaz Ahmad v. Subaida Jan (16 KA 205) and referred to in Hayatuddin v, Abdul Gani (AIR 1976 Bombay 23) and Khader v. Kunhamina ( 1970 KLT 237 ) was inclined to treat the whole rule as archaic and not consistent with the modern notions of rights over property. I do not think that for the purpose of this case I must examine how far this rule must fail for its alleged conservative garb because I feel that the other line of decisions carving out innumerable exceptions to the rule may perhaps set at rest the dispute raised in this case.