HAMID ULLAH Vs. AHMAD ULLAH

JUDGEMENT

(1.) This is a plaintiff's appeal which arises out of a suit for the cancellation of a deed of gift which was executed by the plaintiff's sister, Mt. Aliman, now deceased. on 3 May 1932, in favour of her husband who is the defendant in this suit on the ground that it was void and ineffectual. The subject matter of the gift was a 7/32 share in six houses and three pieces of land. The plaintiff alleged inter alia that the deed of gift was executed at a time of Marzul-maut, that no possession was given as required under the Mahomedan law, and that the deed of gift was also invalid by reason of the doctrine of Mushaa inasmuch as it was a gift of an undivided share in property which was capable of division. The trial Court dismissed the suit and that decree has been confirmed by the lower appellate Court. Learned Counsel on behalf of the plaintiff-appellant pleads before us that the deed of gift was invalid by reason of non-delivery, and also under the doctrine of Mushaa. The rule of Mahomedan law is with certain exceptions with which we are not concerned that a gift of an undivided share in property which is capable of partition is invalid but not void; the gift being invalid and not void, it may be perfected and rendered valid by subsequent partition and delivery to the donee of the share given to him, The property in this case is admittedly capable of partition, consisting as it does of six houses and three parcels of land. The plaintiff was admittedly in possession of the whole property on behalf of the co-owners; and on 17 January 1933, the defendant, in a statement which he made under Order 10, Rule 1, Civil P.C., admitted that he had not actually obtained possession under the deed of gift. In the case of Muhammad Mumtaz Ahmad V/s. Zubadda Jan (1889) 11 All 460 their Lordships of the Privy Council observed as follows: The authorities relating to gifts of Mushaa have been collected and commented upon with great ability by Syed Ameer Ali in his Tagore Lectures of 1884. Their Lordships do not refer to those lectures as an authority, but the authorities referred to show that possession taken under an invalid gift of Mushaa transfers the property according to the doctrines of both the Shia and Sunni schools. The doctrine relating to the invalidity of gifts of Mushaa is wholly unadopted to a progressive state of society, and ought to be confined within the strictest rules.

(2.) In that case a lady had gifted to her daughter some share in revenue paying villages together with land, houses and moveables. Further on. in the judgment their Lordships observed: The lady had merely proprietary not actual possession of the greater portion of the property that is to say, she was merely in receipt of the rents and profits. In the deed of gift she declared that she had made the donee possessor of all properties given by the deed; that she had abandoned all connections with them; and that the donee was to have complete control of every kind in respect thereof. Their Lordships have no doubt that sufficient possession was taken on behalf of the daughter to render the gift effectual.

(3.) It will be observed that in that case the donor had directed her daughter's husband who was the manager of the estates to carry the gift into effect, and to that extent the case for the donee was undoubtedly stronger than the case with which we are now dealing. In the case of Sheikh Gausi V/s. Mohammad Sharif 1930 All 793 a certain person gifted to his maternal grandson a house, a kohlu and some shares in 14 plots of a fixed-rate holding. The Subordinate Judge who heard the first appeal from the decree of the trial Court found that the donor was in constructive possession of the fixed-rate holding, and that he had done everything which he could reasonably be expected to do to enable the donee to obtain possession. A learned Single Judge of this Court after referring to the Privy Council case of which we have already made mention observed as follows: Mulu (i. e. the donor) had a share in the fixed-rate holding jointly with the defendants. He was in constructive possession of the holding through the defendants. He did all that lay in his power to do to wipe himself off and to put his donee into the same kind of possession as he himself had over the property. This gift was therefore complete under the Mahomedan law.