1. The question in this second appeal relates to the validity of the gift made by Kamalbeg in. favour of his daughter Hashimbi, who is the plaintiff.
2. The facts relating to the gift are not in dispute now. On November 23, 1899, Kamalbeg made a gift of a house and certain Inam land described in the deed of gift which is registered. The recitals in the deed relating to possession thereof are as follows:--
At present the said land has been leased out to another person for cultivation. On the expiration of the term of the lease you should take the same into your possession and carry on Vahivat thereof. The house is this day delivered into your possession for Vahivat.
3. The land which is referred to as having been given in lease was at the date of the gift in possession of Venkangowda on terms, which are stated in an award between the plaintiff and Venkangowda's representative as follows:--
Before this gift was made the plaintiff's father had, on April 27, 1898, mortgaged this land for Rs. 800 on conditions that the mortgagee should be in possession of the land for twenty years and that he should make improvements in the laud (Kird). Malgowda is in possession of the land uptil today on this agreement. The defendant should show the improvements as stipulated within twenty years and plaintiff should pay the amount of Rs. 800 and get back the land. Thus has the deceased Kamalbeg agreed in writing. The defendant is accordingly in enjoyment of the land for these nine years.
4. A decree was passed in terms of the award according to which the present plaintiff was to get possession at the end of the period of twenty years in 1920-21 without paying any amount, and the sum advanced by the mortgagee Venkangowda to Kamalbeg was to be treated as satisfied 'at the end of that period. By a later compromise the plaintiff in fact got possession of the land in 1916 from the mortgagee. But the other heirs of Kamalbeg obstructed her possession, and ultimately the present suit was filed on November 19, 1918, by her against the other heirs of Kamalbeg. The trial Court held that the gift was valid: but the lower appellate Court held it to be invalid on the ground that there was no transfer of possession of the land.
5. In the appeal before us it is urged that the gift is valid. It seems to me that this argument must be accepted. It is stated in the plaint and not challenged in the pleadings nor disputed before us that the donee got possession of the house under the deed of gift. To that extent the gift is valid and has apparently been given effect to. As regards the land it is clear that it was in the possession of Venkangowda as a mortgagee at the date of the gift. No immediate transfer of possession to the donee was possible. It does not appear that anything was done to give intimation to the mortgagee at the time of the gift. But the fact remains that in a subsequent litigation between the donee and the mortgagee's heir, the donee got possession. No doubt the donor had died long before the donee got possession from the mortgagee under a compromise. The true position of Venkangowda under the so-called lease was that of a mortgagee. The litigation between Hashimbi and Venkangowda's heir which was settled by an award made by the arbitrators shows that the gift was treated as valid between them.
6. It is true that the donor did not do anything beyond executing the deed of gift so far as the land was concerned. That was possibly due to the fact that Venkangowda died in four days from the date of the gift. But we have the fact that the possession of the house was transferred under the deed: and nothing further by way of transferring possession of the equity of redemption was apparently possible under the circumstances. The gift would, therefore, be valid. The ratio decidendi in Chandsaheb Kashimsaheb v. Gangabai I.L.R. (1921) 45 Bom. 1296; 23 Bom. L.R. 563. would a fortiori apply to this case. But it is argued on behalf of the respondent that the gift of the equity of redemption is invalid according to Mahomedan law and reliance is placed upon the decisions in Mohinudin v. Manchershah I.L.R. (1882) 6 Bom. 650, and lsmal v. Ramji I.L.R. (1899) 23 Bom. 682; 1 Bom. L.R. 177.
7. The decision in Mohinudin v. Manchershah has been criticised by Mahmood J. in Rahim Bakhsh v. Muhammad Hasan I.L.R. (1888) 11 All, 1, and on the facts of that particular case it is difficult to say that the general proposition that there could be no gift of an equity of redemption was decided. In the later case of Ismal v. Ramji the gift was revoked by the donor before any possession of the land could be taken and it is not easy to say how far that circumstance influenced the judgment in any way.
8. There is a very useful criticism of those decisions in Wilson's Anglo-Mahomedan Digest, p. 327 (5th Edition); and the view taken in the Bombay cases has been criticised by other writers on Mahomedan law.
9. When the simple question arises as to whether the equity of redemption, when the property is in the possession of the mortgagee, could form the subject-matter of a valid gift according to Mahomedan law, these decisions would require to be carefully considered probably by a Full Bench. But on the facts such as we have in this case, viz., that the possession of a part of the property given by way of gift was transferred to the donee, and that as regards the rest, the donee in fact got possession from the mortgagee after the donor's death in pursuance of the gift, I feel clear that the gift as a whole should be accepted as satisfying the essential condition as to the transfer of possession in pursuance of the gift.
10. The decree of the lower appellate Court should be reversed and that of the trial Court restored with costs here and in the lower appellate Court on the defendants.
Norman Macleod, C.J.