1. The plaintiff in O. S. No. 250 of 1962, on the file of the District Munsif, Adoni, has preferred this second appeal against the judgment and decree in A. S. No. 26 of 1965 on the file of the Subordinate Judge, Adoni. His suit for partition and separate possession of a 1/3rd share in the plaint schedule property was dismissed by the trial Court and the decision of the trial Court was confirmed by the lower Appellate Court.
2. It is the case of the plaintiff that the plaint schedule property, which comprises of an open site adjacent to a building bearing door No. 14 in Ward No. 29 of Adoni Municipality, belonged to his father and that his father had gifted the same to him and his two brothers, defendants 1 and 2 in the suit, under a registered gift deed dated 24-10-1960. Each of the donees is in possession of the property appurtenant to his premises but for the convenient enjoyment of the same it is necessary to partition the same by metes and bounds. The Ist defendant contended that the gift deed dated 24-10-1960 did not relate to the plaint schedule site that their father had gifted only the house and thereafter under a gift deed Ex. B-1, dated 2-9-1962 he gifted the open site to defendants 1 and 2. Thus the defendants denied the plaintiff's right to a share in the plaint schedule site.
3. The lower Appellate Court gave a categorical finding that under the gift deed, dated 24-10-1960, marked Ex. A-3, the plaint schedule site was gifted to the plaintiff and defendants jointly and that each of them had a 1/3rd share therein. It, however, confirmed the dismissal of the suit of the plaintiff by the trial Court being of the view that a joint gift is not valid under Muslim Personal Law.
4. The only question, therefore, that arises for consideration in this second appeal in favour of his three sons jointly is valid. It is in evidence that so far as the father I. E., the donor, is concerned, he did not retain possession of the property gifted by him under the gift deed, Ex. A-3. He parted with possession and delivered the same to the donees and therefore, he did not have any right, title or interest therein. Once the donor has parted with all his right, title and interest in the subject-matter of the gift merely because the gift was made jointly in favour of all the three donees, the gift is not void. There was no doubt a difference of opinion among the commentators on Muslim Law but the preponderance of opinion is in favour of holding the gift valid if the donor has parted with possession and the donees having entered in to possession, enjoyed the property or proceeded to enjoy the property in proportion to their respective shares. The essential element required to be satisfied for a valid gift under the Muslim Personal Law is that the donor should cease to have any right, title or interest and should have parted with possession of the subject-matter of the gift and put the donees in possession.
5. In Mullick Abdool Guffoor v. Muleka , ILR ( 1884 ) 10 Cal 1112. Garth C. J., observed :-
' We have been referred to several authorities, and,, amongst others, to Derrul Mohhtar, Book on Gift. P. 635, which lays down that no gift can be valid unless the subject of it is in the possession of the donee at the time when the gift is made. Thus when land is in the possession of a Usurper ( or wrong-doer ), or of a lease or mortgagee, it cannot be given away, because in these cases the donor has not possession of the thing which he purported to give.
But we think that this rule, which is undoubtedly laid down in several works of more or less authority, must, so far as it relates to land, have relation to cases where the donor professes to give away the Possessory Interest in the land itself, and not merely a reversionary right in it. Of course, an actual seisin or possession cannot be transferred, except by him who has it for the time being. ..................What is usually called possession in this country is not actual or khas possession but the receipt of the rents and profits ; and if lands let on lease could not be made the subject of a gift, many thousands of gifts which have been made over and over again of zamindari properties would be invalidated............ We think we should be doing a great wrong to the Mahommedan community by placing them under disabilities with regard to the transfer of property, which they have never hitherto experienced in this country. Such a view of the law is quite inconsistent with several cases decided by the Sudder Deewany Adalut, ( under the advice of the kazis ), and also by this Court ( Reference to several such cases is made in the course of the judgment at page 1125 ) '.
5-A. It was further observed :-' That the doctrines of Mahomedan law which lay down that a gift of an undivided share in property is invalid, because of Mooshaa or confusion on the part of the donor ; and that a gift of property to two donees without first separating or dividing their shares is bad because of Moosha on the part of the donees, apply only to those subjects of gift which are capable of partition. '
6. Their Lordships of the Privy Council in Sheikh Muhummad Mumtaz Ahmad v. Zubaida Jan, ( 1889 ) 16 Ind App 205 held :-
'Whether a gift of undivided property ( mushaa ) is valid or not under Mohamedan law, possession given and taken under such gift effectually transfers the property.
A declaration by the donor in the deed of gift that possession has been given the heirs of the donor ; and possession once taken cannot be invalidated by any subsequent change of possession . '
7. The Privy Council in Ibrahim Goolam Ariff, ( 1907 ) 34 Ind App 167 which was a case on appeal from the Chief Court of Lower Burma, considered the effect of a gift of mushaa property, and held as follows :-
'Assuming that the law mushaa, which prohibits gifts of undivided shares of divisible property, applies to the succession of Mahomedans who reside in Rangoon, it does apply to a gift by will of undivided shares in freehold land and of share in companies, ' and referred with approval to the decision in Sheikh Muhummad Mumtaz Ahmed v. Zubaida Jan, 16 Indian Appeals 205, which held that ' 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. '
8. Even the Commentators who held that a gift of undivided share, in property which was capable of division, was not valid, did not hold that it was void. It was merely held to be irregular.
9. In Mulla's Principles of Mahomedan Law, Sixteenth Edition, at page 151, the learned author stated in S.160 as follows :-
'A gift of an undivided share ( mushaa ) in property which is capable of division is irregular ( fasid ), but not void ( batil ). The gift being irregular, and not void, it may be perfected and rendered to the donee of the share given to him. If possession is once taken the gift is validated. '
9-A. In Section 161 it is further stated as follows :-
'A gift of property which is capable of division to two or more persons without specifying their shares or 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 or if there is a subsequent arrangement between all the donees with regard to the possession of the property gifted. '
10. The right rule as to a gift of property by a Muslim jointly in favour of two or more donees being irregular or void, has been considerably relaxed in its application to Indian conditions. In Nazir Din v. Mohammad Shah, AIR 1936 Lah 92, Din Mohammad , J., speaking for the Bench, observed as follows :-
'It will be manifest.............that the original regidity of the rule of Mushaa has been considerably relaxed in its application to British India and in almost all cases, which have come up before the Courts here as well as before the Privy Council, an effort has been made to adapt the rule to its new environments and so to interpret it as to make it consistent with the principles of justice, equity and good conscience. '
11. It was further observed therein :-
'the only test that should be applied in cases of gifts under Mahomedan law is to see whether intention on the part of the donor has been expressed in most unequivocal terms and has been attended by honest efforts on his part to complete the gift by divesting himself of the control over the property in such a manner as would clearly imply his divestiture in the eve of the law of the land or in other words whether the donor has still reserved to himself a loophole of escape or not. If this is not so and if the donor has done all that the law of the land requires to be done to separate himself from the property, a gift of Mushaa will be as valid as that of property which can be physically handed over to the donees. '
12. Tyabji, J., in a well considered judgment, after reviewing the original texts and the case law in this behalf, in Ebrahim Ali Bhai Akuji v. Bai Asi, AIR 1934 Bom 21 held thus :-
'A gift to two or more donees jointly is valid, notwithstanding that the donor has not divided the shares of the donees, nor given separate possession. A gift may be validly made in India to two donees, notwithstanding the fact that the two donees are to hold the property as tenants in common. 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 transferees of the property, and the gift is complete. '
13. Having regard to the weight of authority and the view consistently held by the Courts in our country. I am of the view that the gift of mushaa property per se is not invalid ; so long as the donor has parted completely with the possession of the property gifted and put the donee in such possession as the property is then capable of, such gift is complete and valid.
14. It was argued in this case that the donees have not been put in possession of their separate shares but what is necessary for the validity of the gift is that the donor should have delivered possession of the property to the donees. There is no further requirement that each of the donees should be put in separate possession of his share of the property. Tyabji, J., in the case referred to above, also considered this position. In that case, a Mahomedan gifted his lands to his two daughters and asked the tenants of the lands to pay the rent direct to his daughters, which was done and sometime afterwards he passed a deed of gift to his daughters. The learned Judge held that the gift took effect for the donor had left nothing undone that he could have done if he had intended to complete the gift and there was a complete transfer of possession to the donees.
15. In Kairum Bi v. Marian Bi, : AIR1960Mad447 Balakrishna Ayyar, J., held that where the donor gives away by way of gift the entirty of an undivided share in an estate to two persons jointly the gift is not bad.
16. It follows therefore that a gift of ' Musha ' property or joint property is not valid if the donor divests himself of all his interest therein and puts the donee in such possession of the property as that property is then capable of.
17. Having regard to the above discussion, it must be held that the father of the parties, having parted with possession and all his right, title and interest in the property in their favour, merely because the gift was made in favour of his three sons jointly, the gift cannot be deemed void. That being so, the plaintiff is clearly entitled to a decree for partition and separate possession of his 1/3rd share in the suit property. The Courts below proceeded upon the footing that unless the donees take possession of their shares in the property gifted to them, the gift is not valid. That view is not supported by the preponderance of authority in Indian Courts regarding gifts made by a Muslim.
18. In the result, the second appeal is allowed, the judgments and decrees of the Courts below are set aside, and the plaintiff is awarded a decree for partition and separate possession of his 1/3rd share in the plaint schedule site. The appellant will be entitled to costs in all the Courts except in this second appeal as the respondents are not represented in this Court. No leave.
19. Appeal allowed.