MAHOMED JUSAB ABDULLA Vs. FATMABAI JUSAB ABDULLA

JUDGEMENT

(1.) This case raises a very short but very interesting and important point of Mahomedan law. The facts really are not in dispute. One Jusab Abdulla died on October 7, 1919, leaving him surviving his widow Fatmabai who is the defendant in this case, a daughter Khatoobai and the plaintiff who was a son by his predeceased wife.

(2.) On August 6, 1925, Fatmabai, the defendant, and Khatoobai purchased an immoveable property. It is not disputed that Khatoobai contributed Rs. 10,000 and the defendant Rs. 7,500 towards the purchase of this property. The mother and daughter obtained a conveyance in their favour which is a conveyance in English form drafted by a solicitor of this Court, and the particular provision in this conveyance to which attention might be drawn is the habendum clause which lays down the interest in the property which the mother and the daughter were to enjoy and this is how the habendum clause runs: To have and to hold the hereditaments and premises hereby granted or expressed so to be unto and to the use of the purchasers for ever as joint tenants and not as tenants in common. Khatoobai died on September 3, 1944. She left as her heirs, according to the Sunni Mahomedan law, by which she was governed, her consanguine brother, the plaintiff, and her mother, the defendant; and the plaintiff's contention is that as her heir he is entitled to his share in Khatoobai's interest in this immoveable property which she and her mother purchased in 1925. The answer given by the defendant is that the property was held by Khatoobai and Fatmabai as joint tenants; and on the death of Khatoobai, Khatoobai's interest in the property came to an end and Fatmabai became the absolute owner of the property and the plaintiff has no interest whatever in the property.

(3.) Mr. Boovariwala on behalf of the plaintiff has contended that joint tenancy is an estate unknown to Mahomedan law and in this particular ease the nature of the transaction is a gift and this is a gift which violates the fundamental principles of Mahomedan law inasmuch as it is a contingent gift, it is a gift in futuro and it is a gift of a musha a because it is a gift of an undivided share in a property which is capable of division and which was in fact not divided. As I shall presently point out, in my opinion Mr. Boovariwala is not right when he contends that the real nature of the transaction is a gift. But even assuming it was a gift, would it be true to say that in Mahomedan law a gift cannot be made to joint tenants ? So authoritative a text- book on Mahomedan law as Hamilton's Hedaya expressly refers to a gift to joint tenants and expresses the opinion that a joint tenancy can be created validly under Mahomedan law-see Hamilton's Hedaya, Vol. III, 298. The way the matter is argued by Hedaya is very interesting. The illustration taken is that of a gift of a house to two men. Now, according to Haneefa, the gift is invalid because, according to him, the gift is of half the house to each of the donees and there is a danger of a mixture of property taking place. But in the opinion of two of his disciples-and that is the opinion to be preferred-the gift is valid because the gift is of the whole of the house to each of the donees. In other words, each of the donees has an interest in the whole of the house and not in any specific share in that house. I may point out that those are exactly the incidents of joint tenancy even under English law. As has been pointed out, there are four unities among joint tenants: of title, interest, possession and time. The right that each joint tenant has is to claim partition against his other joint tenant, and on such a partition the joint tenancy becomes severed. But if the joint tenant dies without claiming partition, his interest does not survive to the other joint tenant but his interest becomes extinguished.