MT AHMADI BEGAM Vs. ABDUL AZIZ

JUDGEMENT

(1.) The plaintiff, Mt. Ahmadi Begam, sued for partition of her share of 8 shops and a yard for the collection of wood. This property belonged to her father and the defendants are the other heirs. She claimed a share specified as 1974 out of 6502. The dispute between the parties related to a gift made by the father in his lifetime to the plaintiff of 1,000 sihams. The gift was objected to on two grounds (1) that the father himself not having been in possession at the time could not have given possession to the daughter and so the gift was invalid for want of possession, and (2) that the gift was an invalid one of musha, i.e., an undivided share of joint property.

(2.) Both the subordinate Courts upheld the contention and held the gift to be inoperative. They further declared plaintiff's title in the property in accordance with the right as an heir ignoring the gift. This is a second appeal by the plaintiff. The learned Judge of the lower appellate Court has not quoted any ruling in support of his view. The father himself was out of possession at the time of the gift and he did all that was possible for him to do in putting his daughter in the same position in which he was. He and his daughter subsequently jointly sued the other co-owners of the property and obtained a decree. Under these circumstances want of possession at the time of the gift would not render the gift invalid. In the case of Mahomed Baksh Khan V/s. Husaini Bibi [l888] 15 Cal. 684 their Lordships observed at page 702: In this case it appears to their Lordships that the lady did all she could to perfect the contemplated gift and that nothing more was required from her. The gilt was attended with the utmost publicity. The hibanama itself authorised the donees to take possession and it appears that in fact they did take possession. Their Lordships held under these circumstances that there could be no objection to the gift on the ground that the donor had not been in possession and that she herself did not give possession at the time.

(3.) This ruling fully supports the claim of the plaintiff that the gift cannot fail for want of possession at the time of the gift.