1. This appeal arises out of litigation started by the widow of one of two donees of land, the defendant being the surviving donee. The questions arising in the Courts below and again in this appeal were mainly questions relating to the nature and validity of the gift. It was held that the gift was a valid gift in spite of the rule of Mahomedan law relating to what is known as mushaa dispositions of property, that is, to undivided shares in property, and it was also held that in this particular case the gift was a gift to the donees not as joint donees but as tenants-in-common, so that the plaintiff as widow of one of the donees would be entitled to inherit his share of the property. The defendant has come in second appeal, and the same questions arise.
2. We have heard much argument about the validity of gifts to more than one person in undefined shares. The rule as stated in Mulla's Mahomedan Law, in so far as it relates to two or more donees, is that a gift of property which is capable of division to two or more persons without dividing it is invalid, but it may be rendered valid if separate possession is taken by each donee of the portion of the property given to him. In Sheikh Muhammad Mumtaz Ahmad v. Zubaida Jan the Privy Council was dealing with a gift of this kind, and while finding it unnecessary to express an opinion as to whether the gift in question was invalid or not, they found that the gift was a good transfer of the property because, even if it was invalid, possession had been given and taken under it. Thus their Lordships do not seem to limit the exemption from the rule to cases where possession is taken separately by each donee; and they go on to say (p. 215):
The doctrine relating to the invalidity of gifts of mushaa is wholly unadapted to a progressive state of society, and ought to be confined within the strictest rules.
It is clear that their Lordships did not repudiate the doctrine altogether; and we must hold that in a proper case it would have to be enforced, But the Courts are always reluctant to enforce it, and in most cases we imagine that it would not be necessary to enforce it, assuming that the rigidity of the rule as stated in Mulla's Mahomedan Law is not accepted. There is no difficulty when the Court is dealing with a case of a gift to joint tenants; such a case arose long ago and is reported at Rujabai et al v. Ismail Ahmed et al (1870) 7 B.H.C.R. 27 . In effect it was there held that a gift of property to two persons as joint tenants means a gift of the whole property to each and therefore there is no question of any undefined share. As to gifts in cases where it cannot be said that the intention is to create a joint tenancy, there is the authority of a decision of Mr. Justice Tyabji in Ebrahim v. Bai Asi 35 Bom. L.R. 1148. The learned Judge there said, after a long discussion of the authorities (p. 261):.I do not, by referring to these authorities, mean to indicate that there is the least doubt in my mind that a gift may be validly made at the present dayin India to two donees, notwithstanding the fact that the two donees are to hold the property as tenants in common. I am emphatically of opinion that whether the shares given to the donees be equal or unequal, once the donor has parted with complete possession in favour of the donees, the donees become the transferees of the property, and the gift is complete.
Of this case it was said in Mum v. Badesaheb : AIR1938Bom84 that although Mr. Justice Tyabji had omitted to notice the ease of Sayad Valimia Alimia v. Gulam Kadar Mohidin (1869) 6 B.H.C.R. 25 nevertheless his opinion seemed to be right, although in the case with which the High Court was then dealing it was not necessary to go so far as to deal with tenants-in-common, because the case with which the Court was dealing was one of joint tenancy. We are told that the remarks of Mr. Justice Tyabji were in the nature of obiter dicta because separate possession had been given by way of payment of rent by the tenants. In Sayad Valimia Alimia et al v. Gulam Kadar Mohidin it was stated in a very brief judgment that the Court of Appeal had correctly found against the plaintiff on the ground that the interest to each of the donees was not defined by the gift and, that being so, the ground of want of possession did not arise, and in any case that there was not such a possession in the donees as would satisfy the requirements of the Mahomedan law. In view of the statement of the Privy Council in the case which I have cited we do not think that any assistance can be derived from this decision. The decision of the Privy Council is in general terms and there is nothing to suggest that they were confining exemptions from the rule to cases where possession was taken as joint tenants rather than tenants-in-common. We think that there is no reason to suppose that tenants-in-common along with joint tenants are not equally capable of taking under a gift of this kind, provided that possession be taken. It was argued that in this case no possession was actually taken; but the lower Court, in describing what was done by way of taking possession, said that in the circumstances of the ease it did not seem possible for anything further to be done by way of taking possession, and it is a fact that mutation of names took place as a result of the gift. We are not prepared to disagree with the finding of the lower Court that possession was taken and that the possession taken was such as would validate the gift assuming that it would otherwise have been invalid.
3. The next question is whether the gift was a gift to joint tenants or to tenants-in-common. There is a statement in Mr. Tyabji's Mahomedan Law, 3rd edition, paragraph 356, that where land is given to several persons and it is not stated in what shares they are to take, each takes an equal divided share, and on the death of each, his share devolves on his heirs; and in the next paragraph it is stated that the principle of joint tenancy as understood in English law is unknown to the law of Islam. In support of this latter statement reference is made to Gulam Jafar v. Masludin I.L.R.(1880) 5 Bom. 238 but we are unable to find any support for the statement in that decision. It is argued on the contrary that in cases of this kind the gift must be deemed to be always a gift to joint tenants. In support of that contention reference is made to the English rule of conveyancing which would, in the absence of definite directions to the contrary, create a joint tenancy. But we can see no justification for applying the English rule to the case of a gift of which the deed was not drafted by an English solicitor or anyone acquainted with the English rule of conveyancing; and if we were to apply the English rule, we should apply it not because it happened to be the English rule but because it happened to be in accordance with the Mahomedan custom or the wording of the document or the intentions of the donor or for some like reason. Apart from the English rule, we are asked to treat this gift as a gift to joint tenants in view of the existence of certain known cases where gifts have been made to joint tenants. One such case was Rujabai et al v. Ismail Ahmed et al, where the deed itself expressly stated that a joint tenancy was being created. Another case is Mahomed v. Bai Cooverbai (1904) 6 Bom. L.R. 1043 where Mr. Justice Russell, sitting alone, stated that the use of the words 'granted to you both' seemed to point to a joint tenancy. Speaking for myself, I do not quite know why they should. Another case was Musa v. Badesaheb : AIR1938Bom84 , where in the judgment it is stated that the terms of the gift in question appeared to constitute a joint tenancy. And no doubt there are others. But, generally speaking, property devolves among Mahomedans as tenancy-in-common and not as joint tenancy. We are not aware of any reason why in the absence of clear words implying a joint tenancy we should not treat a gift of this kind as denoting a tenancy-in-common. Stress has been laid in the arguments upon a passage occurring in the gift which says 'the entire property together with the entire rights is given to you today'; but in our view that is equally consistent with a gift of property in common.
4. Lastly, we are asked to construe this particular gift as a gift to joint tenants In view of the circumstances surrounding the gift. We are prepared to agree that not much can be deduced either way as to the intentions of the donor; he may well have intended to protect the rights of the plaintiff in the event of her husband dying, but on the other hand he may not have foreseen the death of the plaintiff's husband and might have preferred the plaintiff and her husband, assuming them to survive, to take all the property; we really cannot say. It is argued that the fact of this property being easily divisible and only one deed of gift having been made indicates that the intention was to create a joint tenancy. It is also argued that the property never having been divided up to 30 years from the death of one of the donees is another indication that it was probably never intended to divide the property among tenants-in-common. But neither of these arguments seem to us to have any real substance. We prefer to think that the intention was that the property should go as property usually does among Mahomedans; and in the absence of any clear indication to create a joint tenancy, we take it that what was created was a tenancy-in-comnion. The appeal, therefore, fails and must be dismissed with costs.