1. The plaintiff brought this suit as a son of he donee of the plaint property under a deed of gift of the 16th of August 1892 for redemption and an account of the mortgage executed by Hajratbi the donor. The suit has experienced a most unfortunate history. A preliminary issue was raised in The trial Court, whether the deed of gift relied upon by the plaintiff was each as to confer a valid title on the donee in respect of the plaint property. Following Iamal v. Ramji I.L.R (1899) Bom. 682: 1 Bom. L.R. 177. the Court found on that issue in the negative, and that finding was affirmed in appeal.
2. In second appeal certain issues were sent down for trial to the lower Court on the ground that the procedure which had been adopted was wrong, and that the Court ought not to have discussed an abstract point of law without first finding on the facts of the case. We have now got the findings on the issues sent down, namely, that the deed of gift relied upon by the plaintiff has been proved; that the donor was in actual possession of certain lands, and in constructive possession of the lands in suit; and that the gift of the former had been perfected by transfer of possession, but that the gift of the latter had not been so perfected. If the mortgaged lands had formed the only object of the gift, then the plaintiff suing as donee of the equity of redemption would not be able to prove his right to redeem the mortgagee who had been in possession, unless something more had been done than the actual execution of the deed; and on the findings of the lower Court, confirmed by the lower appellate Court, it seems that the plaintiff was unable to prove that any thing had been done with regard to the mortgaged property except the execution of the gift-deed.
3. But another question arises whether we should not look at the gift as a whole, and not merely look at that portion of it which purported to convey to the donee the equity of redemption in the mortgaged properties. There is here a gift of five properties which are set out at p. 1 in the judgment of the Second Class Subordinate Judge in remand. Certain of those properties which were in the possession of the donor were actually handed over to the donee, and our attention his not been drawn to any authority which goes to show that we are bound to split up a deed of gift, by which various properties are given, into its component parts, and consider the gift in respect of that portion of the property of which possession could be given as valid, and in respect of that portion of the property of which possession could not be given as invalid. That being the case we see no reason why we should not consider that the principles of Mahomedan law have been complied with when possession was given to the donee of the properties then in possession of the donor, and that would be sufficient to support a claim to redeem the properties which were in possession of the mortgagee. The equities of the case are all in favour of the plaintiff, and there is no reason why we should deprive him of the right to redeem the mortgaged properties unless there is very clear authority against that being done. We think, therefore, that the decree of the lower appellate Court of the 5th of November 1914 must be set aside, and it be declared that the plaintiff is entitled to redeem. The case must go back to the trial Court to take the mortgage account. If any amount is found to be due on the mortgage, then the plaintiff will be allowed to redeem on payment of that amount. If nothing is found to be due, then that Court will lay down the terms on which the plaintiff should get possession. The plaintiff to pay the defendants' costs throughout.