1. This appeal arises out of a suit brought by a Mahomedan widow to recover her dower and her share in the property of her deceased husband.
2. The first point urged in support of the appeal is that her claim to dower is time-barred. Both the Courts have decided in favour of the plaintiff. The decision on this point really depends upon the question of fact as to whether there was any demand and refusal during her husband's life-time. The finding is in favour of the plaintiff, which must be accepted in second appeal. The point, therefore, fails.
3. The second point relates to the gift of a house. Defendant No. 1 pleaded that the house in question was given to him by way of gift by his grand-father on 8th July 1912 and relied upon a registered deed of gift. Both the Courts have found that there was no delivery of possession and that the gift is invalid. It is urged that there was a transfer of possession so as to make the gift valid. It is clear that the registered deed of gift by itself is not sufficient. According to the Mahomedan law there must be a delivery of possession. In the present case it is found by the trial Court, and this finding has been acquiesced in by the lower appellate Court that the donor did not give up his control over the property, and continued in possession of the house until his death in November 1912. The application put in by defendant No. 1, who is the son of the donor's daughter, in January 1913 before the Municipal authorities shows that the possession had remained all along with the donor during his life-time. It is urged, however, that the donee was with the donor on the premises at the time of this gift and that under the circumstances the possession must be deemed to have been transferred to him. In support of this view reliance is placed upon certain observations in Shaik Ibhram v. Shaik Suleman ILR (1884) 9 Bom. 146 It may be, as pointed out in that case, that an appropriate intention where two are present on the same premises may put the one out as well as the other into possession without any actual physical departure or formal entry. But it does not follow in every case necessarily that where the two are present the possession must be deemed to have been transferred. The question as to whether the donor intended to transfer the possession at the time of the gift must be answered with reference to the facts of each particular case. In the present case on the evidence the trial Court has definitely found that there was no transfer of possession. The appellate Court has given no reasons for accepting this finding; and that has necessitated our examining this question at greater length than we might otherwise have to do. In spite of the omission on the part of the District Judge to give reasons in support of the finding that there was no transfer of possession we think that the finding must be accepted now. The gift was, therefore, invalid.
4. Lastly, it is urged that the plaintiff had certain ornaments which she was bound to account for before she could be allowed to claim her share out of her husband's estate. It is clear from the admitted facts in the case that soon after the marriage between the plaintiff and her husband in 1899 there were differences between them. These ornaments were never effectively claimed by the husband during his lifetime although in Suit No. 215 of 1899 a reference was made to them by the husband. It follows that either these ornaments never formed part of the husband's estate or if they formed part of his estate once, they had ceased to form part thereof in November 1912, when he died. This point also must be disallowed.
5. The result is that the decree of the lower appellate Court is confirmed and the appeal is dismissed with costs.