1. The subject-matter of this litigation is a house at Anand which belonged to one Saban Aliji. He died leaving a widow Jivi and a daughter Nurbai who is the plaintiff. Nurbai was married and had a son defendant No. 1. In 1918 Jivi purported to convey the house by a deed of gift to her grandson defendant No. 1. She died in 1929. In 1930 defendant No. 1 mortgaged the house to defendant No. 2, and in 1934 he sold his equity of redemption to defendants Nos. 3 and 4. Defendant No. 2 got a decree on his mortgage, and in the execution proceedings plaintiff claimed the house as her property. She was referred to a suit and she sued accordingly for a declaration that she was the owner of the house and that the mortgage and sale by defendant No. 1 were not binding on her. The trial Court held that there was a valid gift by Jivi to defendant No. 1 and dismissed the suit. There was an appeal to the District Judge which was summarily dismissed.
2. The issues which have been argued in this second appeal are : (1) whether there was a valid gift to defendant No. 1, (2) whether, if so, it was effective after the death of Jivi, and (3) whether it is open to the plaintiff to challenge the gift.
3. The parties are Sunni Bohras, and it was held in Bai Baiji v. Bai Santok I.L.R. (1894) 20 Bom. 53 that the Sunni Bohras of Gujarat, like Khojas and Cutchi Memons, are governed by the Hindu Law of succession and inheritance. This position is accepted by the parties, and the case falls to be decided on the footing that they are governed by Hindu law in matters of succession and inheritance but by Mahomedan Law in other respects,
4. The validity of the gift therefore is to be determined by the Mahomedan law, and the Mahomedan law as to gifts has been expounded by the Privy Council in Musa Miya v. Kadar Bux (1928) L.R. 55 IndAp 171 where the following passage from Mac-naghten's Principles and Precedents of Mahomedan Law, Ch. V, is cited (p. 176):
(1) A gift is 'defined to be the conferring of property without a consideration. (2) Acceptance and seizin, on the part of the donee, are as necessary as relin-quishment on the part of the donor. (4) It is requisite that a gift should be accompanied by delivery of possession, and that seizin should take effect immediately, or, if at a subsequent period, by desire of the donor. (8) A gift cannot be implied. It must be express and unequivocal, and the intention; of the donor must be demonstrated by his entire relinquishment of the thing given, and the gift is null and void where he continues to exercise any act of ownership over it. (9) The cases of a house given to a husband by a wife, and of property given by a father to his minor child, form exceptions to the above Rule (10) Formal delivery and seizin are not necessary in the case of a gift to a trustee, having the custody of the article given, nor in the) case of a gift to a minor. The seizin of the guardian in the latter case is sufficient.
5. The gift in the present case is challenged on the ground that there was no delivery of possession and Jivi in no way relinquished her control of it. She was living in the house at the time of the gift with plaintiff and defendant No. 1. She continued to live in it till her death, and the alleged gifts as it appears made no practical difference. In 1924 she leased a part of the house to a tenant, and in 1926 she brought a suit to evict the tenant. As there was no actual delivery of possession to the donee, or relinquishment of control by the donor, the question is whether the case conies within any of the exceptions referred to in the passage cited from Macnaghten. Defendant No. 1 was a minor aged about ten years at the time of the gift. Bai Jivi was not his guardian for his parents were both alive. The facts were very similar in the Privy Council case, and yet it was held that there was no valid gift. In the gift-deed plaintiff was mentioned as the boy's guardian, but the gift was to him and not to her. Even if it had been to her it would have made no difference, for in that case the exceptions obviously would not apply and actual delivery of possession was essential. It is true that in the Privy Council case there was no deed of gift. But it cannot be argued that the execution of a deed of gift does away with the necessity for delivery of possession.
6. There is a recital in the gift-deed that possession had been delivered and the lower Courts, relying on a passage in Sir Dinshah Mulla's Principles of Mahomedan Law, have held that this recital binds the heirs of the donor, and, therefore, the plaintiff. The passage referred to in Mulla's Principles is based upon the Privy Council decision in Sheikh Muhammad Mumtaz Ahmad v. Zubaida Jan . It is true that, in the course of the judgment in that case, their Lordships said that a declaration in the deed of gift by the donor that she had made the donee possessor of all properties given by the deed was an admission by which her heir and all persons claiming through him were bound. Their Lordships, however, cannot be supposed to have intended to lay down that the admission was conclusive. They did not by any means rely solely upon this admission as proof of the delivery of possession. The facts there were somewhat peculiar. The donor had merely proprietary and not actual possession of the greater portion of the property. She was merely in receipt of the rents and profits. The gift was by a mother to her daughter, and at the time of the gift the daughter's husband was the general manager of both mother and daughter, and their Lordships said he would doubtless take care that the deed of gift should be carried into effect. Their Lordships had no doubt that sufficient possession was taken on behalf of the daughter to render the gift effectual. On the facts of that case then it seems to have been assumed1 that there had been an actual handing over of the rents and profits to the donee which was all the delivery of possession which was possible under the circumstances. No such assumption as to actual delivery of possession in any shape or form can be made in the present case where, as I say, the circumstances are almost precisely similar to those in Musa Miya v. Kadar Bux. In the present case, moreover, the plaintiff, in spite of certain confusing statements which she has made in the plaint, must in law be regarded as legally the heir of her father and not of her mother, and that being so, the ruling in Sheikh Muhammad Mumtaz Ahmad v. Zubaida Jan does not apply. In our opinion the lower Courts were wrong in holding on the strength of this declaration in the deed of gift that there was such delivery of possession and relinquishment of control by the donor as the Mahomedan law requires. We are of opinion that it must be held that the gift was incomplete and void in law.
7. That being so, the second question as to whether the gift ceased to be effective on the death of Jivi does not really arise. But, in deference to the arguments of the learned advocates, I propose to discuss it briefly. The answer to the question depends on the nature of the estate taken by Jivi in the house inherited by her from her husband. On behalf of the plaintiff-appellant it is contended that she took a Hindu widow's estate without power of alienation beyond her lifetime except for legal necessity. For the respondents it is argued that she took an absolute estate. There seems to be no direct authority for either view. But obviously, if a widow in this community takes an absolute estate, the law of inheritance is neither the Hindu law nor the Mahomedan law, and, as it is admitted that the parties are govern-ed by the Hindu law of inheritance, we think that that reasonably implies that a widow inheriting from her husband takes only a limited estate. Apart from quite exceptional cases like the Jains, for instance, that is the ordinary and accepted rule of Hindu Law.
8. It was pointed out in Bai Sakar v. Ismail Gafoor : AIR1937Bom65 that the law which is presumed to apply is the law of inheritance in the strict sense, i.e., inheritance to a separated Hindu or to self-acquired property. The application of the co-parcenary law cannot be presumed and must be proved. That, however, does not help us in the present case because the widow of a separated Hindu takes only a limited estate. So far as the cases cited lend any assistance at all they rather go to support the appellant's view. In Bai Baiji v. Bai Santok the contest was between a daughter and a widow, and the latter only claimed to have, and was therefore only held to have, a Hindu widow's estate. In the case of Cutchi Memons the distinction between stridhan and other property of a widow has been recognised : Ashabai v. Haji Tyeb Haji Rahimtulla I.L.R. (1882) 9 Bom. 115 and Moosa Haji Joonas v. Haji Abdul Rahim I.L.R. (1905) 30 Bom. 197. In Bai Sakar v. Ismail Gafoor one of the judicial decisions produced as evidence in the case was a judgment in a suit brought by an alienee from the widow of the last male holder against a brother of her husband in which it was held that the Hindu law of succession applied and that the widow had a Hindu widow's1 estate.
9. Mr. Thakor for the respondents contended that the plaintiff was bound to allege and prove a custom in this community to the effect that widows take a limited estate. But that, I think, is not a correct statement of the position, for it must be held that the presumption is that the Hindu Law of inheritance and succession applies to the parties. That position is indeed admitted. There is no question of proving any special custom. The only question is, whether it follows from, the application of the Hindu law in this respect that a widow inheriting her husband's property takes what is ordinarily under stood in the Hindu law as a widow's estate, and, we think, that must be held to be the case. That being so, on Jivi's death the person next entitled would have a right to recover the property in spite of the gift.
10. The argument that the plaintiff is not entitled to challenge the alienation is based upon the decision of this Court in Baburao v. Tukaram (1930) 33 Bom. L.R. 235 and the cases referred to therein. The facts in that case were that a Hindu widow with the consent of her only surviving daughter made a gift of her husband's property to the son of a predeceased daughter and after the death both of the widow and the consenting daughter the step-sons of that daughter sued to set aside the alienation. It was held that the consenting daughter was precluded from disputing the validity of the deed of gift on the ground of election to treat the transaction as valid, if not on the ground of estoppel, and that her step-sons were similarly precluded, Mr. Justice Patkar in his judgment said (p. 238):.it is now settled that where a reversioner has either ratified the transaction after the death of the widow or has unequivocally manifested his intention to abide by the act of the widow, e.g., by joining in the deed of the widow during her lifetime, he is personally debarred from resiling from it and impugning its validity.
11. In the present case all that the evidence shows is that the plaintiff was mentioned in the deed of gift as the guardian of the minor defendant No. 1. From that circumstance it cannot be inferred, we think, that there was any unequivocal manifestation by her of an intention to abide by the act of Jivi. There is no evidence that she ratified the transaction after Jivi's death. On the facts therefore Baburao v. Tukaram can be distinguished. Moreover, the basis of the decision appears to have been that the alienation there was a voidable transaction. Reliance was placed on an observation of their Lordships of the Privy Council in Ramgouda Annagouda v. Bhausaheb I.L.R. (1927) IndAp 396:
It is settled law that an alienation by a widow in excess of her powers is not altogether void but only voidable by the reversioners, who may either singly or as a body be precluded from exercising their right to avoid it either by express ratification or by acts which treat it as valid or binding.
12. This reasoning cannot be said to apply to the case of a transaction such as a gift, which is incomplete for want of delivery of possession, and therefore void. We are not prepared to hold therefore that plaintiff is precluded from challenging the validity of the gift in this case.
13. The result is that we must allow the appeal, set aside the decrees of the Courts below, and grant the plaintiff the declaration and injunction sought, with costs throughout to be paid by defendant No. 1. The other defendants to pay their own costs.