SAMSUL NEHAR BIBI Vs. MOULVI MOHIUD-DIN-AHMAD

JUDGEMENT

(1.) These are two appeals by the two defendants in a suit for recovery of joint possession of land and for partition after such recovery.

(2.) The title of the plaintiff is based upon a gift from the true owner, dated the 7th September 1915. It has been found that, at the time when the gift was made, the owner was not in possession as he had been dispossessed by the first defendant who held adversely to him. The question for consideration is, whether, in these circum-stances, the plaintiff acquired a good title under the Muhammadan Law.

(3.) The Subordinate Judge has held that as the proprietor could transfer only an actionable claim, the gift of that actionable claim was valid because possession of the claim in question could not actually be transferred; in other words, that under such a gift the plaintiff has become entitled to recover the property in the same way as the original owner might have done. In our opinion, this conclusion is based upon an erroneous view of the Muhammadan Law on the subject.