Obul Reddi, J.
1. The short and interesting question that arises in this Letters Patent Appeal relates to the validity of Ex. B-1, a gift deed (Hiba nama) executed by one Nabi Khan on 2-6-1967 in favour of the 1st defendant. The donee is the sister's daughter of the donor. The plaintiffs are the heirs of Nabi Khan and they brought the action for recovery of possession of the house gifted under Ex. B-1. One Subbanna, a usufructuary morgagee, was in possession of the suit house as it was mortgaged to him, by Nabi Khan. the doner, it is not in dispute, died on 9-6-1967, seven days after the execution of Ex. B-1. The donee took possession of the suit house from the usufructuary mortgagee on 9-1-1968 and she has been in uninterrupted possession of the house since then. Though the trial Court upheld the validity of the gift, an appeal was preferred and the Subordinate Judge, who heard the appeal, reversed the judgment and decree of the trial Court holding that there was no actual delivery of possession inasmuch as the house admittedly was in the physical possession and enjoyment of the mortgagee at the date of the gift and death of the donor. It is against that decree and judgment that a second appeal was preferred to this Court. Our learned brother, Madhava Reddy, J., reversed the judgment and decree of the lower Appellate Court and allowed the appeal of the respondents herein. Madhava Reddy, J., while allowing the appeal, observed :--
'Where the property gifted is subject to a usufructuary mortgage. What is gifted is merely the equity of redemption and not physical possession of the property itself. The equity of redemption is not capable of being physically delivered and the donee cannot be put in actual possession.'
It is the correctness of this view that is now canvassed before us.
2. Mr. R. V. Subba Rao, appearing for the appellants of a gift deed by a donor under Mahomedan Law is not sufficient to make it a valid gift unless there is some overt act to show that it was the intention of the donor to divest himself of all his rights in the property; and in this case all that was done by donor was only to hand over the gift deed without any other overt act by way of notice to the mortgagee or by way of beat of drum and as such, it cannot be said that symbolical delivery of the property by handing over a gift deed would constitute a valid gift. In support of his contention the learned Counsel invited our attention to certain passages from Tyabji's Muslim Law (4th Edition) Mahomedan Law by Syed Ameer Ali (Vol. 1. 4th Edition) and Mulla' Principles of Mohammedan Law by Hidayatullah, C. J. besides certain decisions of the High Courts.
3. The essential ingredients of a gift under Mohammedan Law are stated by the Privy Council in Md. Abdul Ghani v. Mt. Fakhr Jahan , AIR 1922 PC 281. They are: (1) a declaration of gift by the donor: (2) an acceptance of the gift express or implied, by or on behalf of the donee: and (3) delivery of possession of the subject of the gift by the donor to the donee, either physically or constructively. The controversy centres round the third essential regarding delivery of possession of the property gifted under Ex.B-1. Mr. E. Ayyapu Reddy appearing for the respondents contended that it is impossible to give physical delivery of the property, which is in possession of the usufructuary mortgagee and all that possibly could be expected to be done by the donor was to make a symbolical delivery of the property, which alone he is capable of and since there was such symbolical delivery, it would satisfy the well-recognised third condition laid down by the Privy Council.
4. Mr. Subba Rao relied upon Section 381 and 407 in Tyabji's Muslim Law and they may be read :
381. 'The gift of property which is mortgaged and in the possession of the mortgagee is valid, if constructive possession of the mortgaged property is transferred to the donee; Section 410. A gift may be validly made of the equity of redemption by the donor completely transferring it .'
The following commentary of the learning author is relied upon to show that unless notice of the gift was given to the mortgagee, it will not be a valid gift.
'The gift of mortgaged property may be completed by the donor conveying the equity of redemption to the donee, giving notice to the mortgagee that the legal estate had been transferred by him, and letting the donee exercise all the rights of the legal owner.'
407. 'Possession of the equity of redemption of immovable property in the possession of a mortgagee, may be transferred by the donor giving to the mortgagee notice of his having conveyed to the donee the property subject to the mortgage, and permitting the donee to exercise all acts of ownership that may be exercised by the owner of the equity of redemption.'
Section 410 may now be read :
410 (a) 'The donor may complete the gift by transferring symbolical or constructive possession of the subject of the gift to the donee.
(b) x x x x x'
The author, therefore, does not rule out symbolical or constructive delivery of possession in order to make the gift complete and valid.
5. What is stated by Ameer Ali in his Mahomedan Law (at page 67) is this :
'But this is not the case when the property is in the hands of somebody else who is claiming to hold direct possession of it by some title either derived from or independently of the donor. For example, a mustajir (a lessee) and a mortgagee in possession claim the right to hold the property under an act of the donor himself ; a usurper has it in his hand sunder an adverse title. In neither of such cases the possession is with the donor that he can transfer the possessory right or vest it by a mere declaration, as it the case when the property in his own hands or in the hands of his depositary, for he can at any time resume possession. For the completion of a gift of property in the hands of a pledgee or a person holding possession under an invalid sale or an adverse title, something more is needed than or 'mere declaration'. viz., an authority to receive the income or to take possession on the expiration of the lease or mortgage, or to sue for recovery.'
The learned author next quoted Heddya and Kifaya. The following is the passage from Kifaya.
'Then if it is objected that complete season being conditioned, a gift of property in the hands of a depositary cannot take effect, and season in such a case is merely constructive falling short of real season, then I say (with reference to this objection) that constructive season is sufficient for the completion of the gift.'
So what is required to make or constitute a valid gift is not physical delivery of possession of the mortgagee. Since the possession of the donor is itself constructive possession, the benefit of such constructive possession would also enure to the benefit of the donee if the first two essentials viz; the declaration of the gift by the donor, and acceptance of the gift by the donee, are present.
6. The case reported in Kasam Umar v. Gulab, AIR 1956 Sau 20, relied upon by the learned counsel for the appellants, far from supporting his stand, supports the respondents' case. It was nowhere said by the learned Judges that equity of redemption of a mortgaged property cannot be the subject of a valid gift unless there is some overt act by way of notice to the mortgage or beat of drum or taking the donee to the property and making a public declaration that he had made a gift. All that is stated by the learned Judges is that 'the donor should divest himself of all his rights and should put the donee in a position to recover possession and should invest him with authority for that purpose.' That was a case where there could not be any delivery of actual possession of the property; for, the house which was gifted was in the possession of the mortgagee. As would appear from the facts of that case, the donor was ill for a long time prior to the date of the gift, and therefore it was observed that he could not be expected to leave the house and hand over possession to the donee. The donee also did not actually leave his house and come to reside with the donor in the suit house. All the same, the donee and his wife were attending on the donor and nursing him throughout the major part of the day. The donee entered into actual possession of the house only after the death of the donor and was in possession thereof. On these facts, it was held by the learned Judges that:
'The fact of his taking over actual possession immediately on Hasan's (donor's) death is an additional circumstance to be taken into account in considering the validity of the gift.'
The facts here are somewhat similar to the facts in the Saurashtra case. AIR 1956 Sau 20. The donor, in the instant case, did not survive for more than seven days after executed ex. B-1 and a few months after his death the donee came into possession of the suit house. In these circumstances, no overt act such as giving a notice to the mortgagee or taking the donee to the suit house or making publication by tom tom or otherwise can possibly be expected during the short period of seven days that the donor lived after executing the gift deed.
7. The following observation of the learned Judges in Chandsaheb Kashimsaheb v. Gangabai Vishnu, AIR 1921 Bom 248, does not also render any assistance to the view put forth by the Counsel for the appellants.
'If the mortgaged lands had formed the only object of the gift, then the plaintiff suing as donee of the equity of the redemption would not be able to prove his right to redeem the mortgagee who had been in possession, unless something more had been done than the actual execution of the deed.'
That was a case where the gift deed contained not only the properties that were mortgaged but some other properties also. It was therefore observed by the learned Judges, Macleod. C. J.: and Shah, J., that:
'Where the donor of certain properties gives the donee actual possession of such of them as are in the donor's possession but with regard to the rest which have been mortgaged to a third person with possession, nothing further is done than the execution of the gift deed, the donee should be held entitled to the later set of properties also and to redeem the mortgage on them.'
The learned Judges, having said so, sought to draw a distinction between the gift of properties in actual possession of the donor and properties which were in possession of third parties and also gifts which did not comprise both kinds of properties. That was not a case where the learned Judges were considering symbolical delivery of possession by a person in constructive possession of the property and the donor dying a few days later after the execution of the gift deed and the donee coming into possession of the property a few months thereafter. Even otherwise, we are not prepared to subscribe to the view that symbolical delivery of mortgaged property which is in the possession of a mortgagee, will not make it a valid gift.
8. Blair and Aikman. JJ., In Anwari Begum v. Nizam-ud-din Shah. (1899) ILR 21 All 165. where considering the case of a gift by a Mahomedan of properties which were attached by the Collector for realisation of arrears of land revenue. After referring to the following commentary at page 61 of Ameer Ai's Mahomedan Law (Volume I) with reference to the case of Mohinudin v. Manchershah, (1882) ILR 6 Bom 650.
'The view taken by the majority of the Judges is founded upon an erroneous impression of Hanafi Law, under which season is requisite for Hypothecation. According to the correct view of the Hanafi doctrine on the subject there is nothing to preclude the mortgagor from granting his equity of redemption to another.'
The learned Judges observed at page 170:
'There is no doubt that the principle of Muhammadan Law is that possession is necessary to make a good gift, but the question is, possession of what? If a donor does not transfer to the donee, so far as he can, all the possession which he can transfer, the gift is not a good one. As we have said above, there is, in our judgment, nothing in the Muhammadan Law to prevent the gift of a right to property. The donor must, so far as it is possible for him, transfer to the donee that which he gives, namely, such rights as he himself has: but this does not imply that were a right to property forms the subject of a gift, the gift will be invalid unless the donor transfers, what he himself doesnot posses, namely, the corpus of the property. He must evidence the reality of the gift by divesting himself, so far as he can , of the whole of what he gives.'
9. A Division Bench of the Calcutta High Court consisting of Chatterjee and Suhrawardy, JJ. in Tara Prasana v. Shandi Bidi, AIR 1922 Cal 422 dealing with the essentials of a gift of property in the possession of a mortgagee said :
'Under Mohameddan Law the right of the equity of redemption like other incorporeal right may be made subject of a valid gift, and the fact that the possession is with the mortgagee does not invalidate it.'
10. In Muhara Bibi v. Maharula Mondal 57 Cal LJ 375 = (AIR 1933 Cal 785) M. N. Mukerji J. after referring to AIR 1922 Cal 422, observed that
'Equity of redemption cannot be the subject of a valid gift under the Mohammadan Law when the property is in possession of a mortgagee can no longer be maintained.'
The learned Judge further observed :--
'Possession in connection with a gift under Mohammadan Law means such possession as the nature of the subject of the gift is capable of. The mere fact that the land was in the possession of a usufurctuary mortgagee and therefore no delivery of actual possession could be made would not render the gift in respect of such land invalid.'
Nowhere do we get in these decisions that an overt Act such as the one that the learned counsel sought to illustrate is necessary to make a gift of the property which is subject to a usufructuary mortgage a valid one.
11. In Abdul Kabir v. Jamila Khatoon, : AIR1951Pat315 , Meredith and Ramaswami, JJ., were considering the validity of a gift of property in the possession of a mortgagee. The learned Judges, on a consideration of the leading cases on the topic held :
'The gift of land in possession of the mortgagee is valid, as possession in connection with Muhammadan law of gift means only such possession as the nature of subject of the gift is capable of. A gift of mere equity of redemption in land in possession of the mortgagee is therefore valid and conveys good title to the donee.'
12. Randhir Singh, J. in Mirza Mehdi v. Sikandar Nawab : AIR1955All255 , likewise observed :
'The requirements of Muhammedan Law in the matter of a valid gift will be complied with sufficiently if the donor does all that lies in his power to complete a transfer of proprietary rights and such rights of possession as he has over that property in favour of the donee. All that is required in such cases is to deliver to the donee such possession as the donor himself has and as the donor has no tangible physical possession an unequivocal declaration would be a sufficient of possession.'
x x x x x x
'Failure to tell the mortgagee that the donee would thereafter be the mortgagor and the omission to remove his name from Municipal records are not the circumstances to hold that the donor had not done all which he could possibly do to transfer possession to donee .'
13. The case of the Travancore Cochin High Court in Maitheen Beevi v. Ithappiri Varkey, AIR 1956 Trav Co. 268, is also of not much assistance to the appellants for the reason that that was a case where the gift was hedged with certain conditions. A house which was gifted was in the possession of the donor and the gift was made subject to the condition that the donor and his wife would have the right to live in and take usufruct of the property till their life. On those facts, it was held :
'The fair inference was that the donee was not to take possession of the property in the lifetime of the donor. Such gift was bad under the Mahomedan Law .'
14. The decision in Maqbool Alam v. Khodaja, : 3SCR479 does not also render any assistance. That was a case of a trespasser being in possession of the property. When the property is in the possession of a trespasser, a person having title to the property cannot say that he is in constructive possession of the property. He can make a valid gift of that property provided he recovers possession from the trespasser and hands over possession of the same to the donee. Bachawat, J., while holding that delivery of constructive possession of the property to the donee, in the case of property in possession of the mortgagee, was sufficient to make it a valid gift, also explained in what circumstances a gift of property in the possession of a trespasser could be validly made. To quote Bachawat, J:
'There can be a valid gift of property in the possession of a lessee or a mortgagee and a gift may be sufficiently made by delivering constructive possession of the property to the donee. Some authorities still take the view that a property in the possession of a usurper cannot be given away, but this view appears to us to be too rigid. The donor may lawfully make a gift of a property in the possession of a trespasser. Such a gift is valid, provided the donor either obtains and gives possession of the property to the donee or does all that he can to put it with the power of the donee to obtain possession .'
It is thus manifest that a trespasser cannot be equated to a mortgagee in possession of the property. Nothing further need be done by the donor, except what he is capable of, as the mortgagor of the property, to make a valid gift. The question of his having to put the donee in possession after recovery of possession or after redemption of the mortgage will not arise in the case of gift of property in the possession of the mortgagee.
15. The decision of the Supreme Court in Kutheessa Umma v. Pathakkalan Naravanath, : 4SCR549 , answers the question raised by the learned counsel for the appellants. Hidayatullah, J. (as he then was), speaking for the Court dealing with the case of a husband making gift of movable and immovable properties to his minor wife through her mother, observed:
'Where a husband, a Hanafi, makes a gift of properties, including immovable property, by registered deed to his minor wife who had attained puberty and discretion, and the gift is accepted on her behalf by her mother in whose house the husband and wife were residing, when the minor's father and father's father are not alive and there is no executor of the one or the other, such a gift must be accepted as valid and complete, although the deed is handed over to the minor's mother and possession of the property is not given to a guardian specially appointed for the purpose by the Civil Court. There can be no question that there was a complete intention to divest ownership, on the part of the husband the donor, and to transfer the property to the donee. If the husband and handed over the deed to his wife, the gift would have been complete under Muhmamadan Law and it is impossible to hold that by handing over the deed to his mother-in-law in whose charge his wife was the husband did not complete the gift .'
16. So what is required is the intention of the donor to divest his ownership and rights in the property and in this case that intention is borne out by the delivery of the gift deed and the 1st respondent herself coming into possession of the property after the death of the donor.
17. The law on the subject is succinctly stated in Mulla's Principles of Mohammadan Law (Sixteenth Edition) by Hidayatullah, C.J., in Section 145 (at page 138). That section is in the following terms:--
145. 'Gift of equity of redemption. ---
(1) A gift may be made by a mortgagor of his equity of redemption
(2) There is a conflict of opinion whether a gift of an equity of redemption. Where the mortgagee is in possession of the mortgaged property at the date of the gift, is valid. The High Court of Bombay has held that it is not (Ismal v. Ramji) (1899) ILR 23 Bom 682 ; Mohinuddin v. Manchershah (1882) ILR Bom 650. On the other hand , it has been held by the High Court of Calcutta that it is valid ; AIR 1922 Cal 422; 57 Cal LJ 375 = (AIR 1933 Cal 735). The latter, it is submitted, is the correct view. It has been so held by the High Courts of Patna and Allahabad : AIR1951Pat315 and AIR 1955 All 244 .'
It would suffice, to constitute a valid gift of property in the possession of a mortgagee, if the donor delivers symbolic possession of the property to the donee by handing over the gift deed divesting himself of his title, rights and interest in the property and it is not necessary that there should be any overt act either by way of beat of tom tom or publication or notice to the mortgagee or the like.
18. We, therefore, hold that our learned brother was right in coming to the conclusion that the gift of the property in question was complete and valid.
19. In the result, the Letters Patent Appeal fails and is accordingly dismissed with costs.
20. Appeal dismissed.