EBRAHIM ALIBHAI AKUJI Vs. BAI ASI

JUDGEMENT

(1.) The question in this appeal refers to the effect of a gift purported to be made by one Abraham Wajir Mahomed. He died leaving a widow, Ashi (defendant No. 1), and two daughters, Hurt and Mulak. Prior to 1896, the deceased had purported to make a gift of several lands to his daughters. He called the tenants at the time, and directed them to pay the rents to the two daughters, which they did. Subsequently, on March 7, 1896, he executed two deeds, Exhibits 225 and 226.

(2.) The gift has been contested in this Court on the ground that it is invalid in its inception because of the doctrine of musha , and that in any case there has been no such special possession or transfer as, it is alleged, the law requires when a gift is made jointly to two donees.

(3.) Reliance is placed in the first instance upon Musammat Bibi Bilkis V/s. Sheikh Wahid Ali (1927) I.L.R. 7 Pat. 118. That case is entirely different. There the donor, Turab Ali, purported to make a gift in favour of his two sons, and two grandsons by a pre-deceased son. A third of the property was to be taken by each son, and a third by the grandsons. But the donor is stated, in the judgment to have remained in possession of the property, and administered it during his lifetime. The decision did not turn upon there having been an attempt to make a gift of musha. It was not held that being such an attempt, it must fail. The decision turned upon there having been no transfer of possession. The principle to be followed in deciding such cases is laid down at p. 123 of the report. ...the validity of a gift of musha must be tested in the same way as of any other gift: there must be as complete a transfer of the possession of the subject of gift as the circumstances permit; and the donee is not entitled to claim anything to be done in his favour that the donor has not done : the Courts are inclined to uphold a gift of musha, i. e., of an undivided part of property, except where the omission to separate the portion of the property which is the subject of gift from the rest of it, is taken as an indication that there has been, in effect, an incomplete transfer, which the donor would have completed by partition, had he intended bo complete the gift.