Om Prakash Trivedi, J.
1. This is a defendants' second appeal and arises from the judgment and decree dated 21-8-1962 passed by the District Judge, Sitapur, upholding the judgment and decree of the Civil Judge, Sitapur. The material facts are briefly as follows:
2. Plaintiff-respondent Smt Tayyaba Begam filed a suit for partition in the Courtof the Civil Judge in respect of her 1/3 share in three houses Nos. 138, 140 and 144 situate in Mohalla Shaikh Sarai, district Sita-pur. It is an admitted fact that the houses in dispute originally belonged to Munshi Ali Mohammad who died in 1929. He had two wives, the first wife having died during his lifetime and on his death the second Wife Smt Afsari Begara survived. The plaintiff-respondent Smt. Tayyaba Begam is the daughter and Sheikh Aftab Hussain defendant-appellant No. 1 is the son of Smt Af-sari Begam who has also since died. The plaintiff and defendant No. 1 are admittedly the sole heirs of the deceased lady. It is further an admitted fact that after the death of Munshi Ah' Mohammad, Smt. Afsari Begam, Sheikh Aftab Hussain, Smt. Najafi Begam, daughter of the first wife and Smt. Tayyaba Begam (plaintiff) were his sole heirs and inherited l/8th, 14/32nd, 7/32, and 7/ 32nd shares respectively.
During the lifetime of Smt. Afsari Begam Smt. Najafi Begam executed a deed of gift on 9-9-1932 in respect of her 3 annas 6 pies share in respect of houses Nos. 138 and 144 in favour of one Smt. Sajjad Bano and the latter in her turn sold this share in the houses to Smt. Madam Begam, the deceased mother of defendants-respondents Nos. 2 and 3 Sheikh Abid Raza and Sheikh Asghar Raza, Defendants Nos. 2 and 3 claimed ownership in the two houses to the extent of 3 annas 6 pies share on the basis of the gift deed executed by Smt. Afsari Begam (sic) (Najafi Begam?) in favour of Smt. Sajjad Bano and the subsequent sale by the latter in favour of their mother Smt. Ma-dani Begam. They alleged that two years after the death of Munshi Ali Mohammad his widow Smt. Afsari Begam had entered into possession of the two bouses in lieu of dower debt with the consent of all the heirs of Munshi Ali Mohammad. She died in 1947 and according to them her entire dower debt will be deemed to have been paid off from the usufruct of the houses.
Both the plaintiff-respondent and defendant-appellant No. 1 had disputed the title of defendants Nos. 2 and 3 and their mother Smt. Madani Begam as also that of Smt Sajjad Bano on the ground that the gift deed related to undivided share in the houses and was invalid because it was hit by the doctrine of Mushaa and was not followed by delivery of possession in favour of donee Smt. Sajjad Bano and as no valid title was conveyed to her she was incompetent to transfer any share in the houses by sale to Smt. Madani Begam, mother of defendants Nos. 2 and 3. It was further claimed by the plaintiff that Rs. 2000/- were paid by her husband towards certain debt of Munshi Ali Mohammad and defendant No. 1 also claimed having paid Rs. 1500/- towards certain debts of Munshi Ali Mohammad. Both the plaintiff and defendant No. 1 claimed adjustment for the said amounts at the time of partition. There was yet another plearaised by appellant-defendant No. 1 and it was that Smt. Afsari Begam had perfected right to the 3 annas 6 pies share which was claimed by Smt Sajjad Bano under the gift deed because she remained in possession over houses Nos. 138 and 144 hostile to her and to defendants Nos. 2 and 3. Smt Mashkura Begam defendant No. 4 and appellant No. 2 before this Court had set up an oral gift in her favour by Smt. Afsari Begam in respect of house No. 144 and claimed exclusive ownership of the house on that basis.
3. So far as the present appeal is concerned it is sufficient to mention that according to the finding of the trial Court the gift deed in favour of Smt Sajjad Bano was not hit by the doctrine of Mushaa and that Smt. Afsari Begam had not perfected title to houses Nos. 138 and 144 against defendants Nos. 2 and 3. The trial Court found it proved that the husband of plaintiff had paid Rs. 2000/- to the creditors of Ali Mohammad and that defendant No. 1 had also paid Rs. 1500/- towards the debt of Ali Mohammad but rejected the claim of defendant No. 1 for adjustment to the extent of Rs. 1500/-. Then there was also a finding that Smt. Afsari Begam had been in possession of the three disputed houses in lieu of her dower debt after the death of her husband and that plaintiff and defendant No. 1 were in possession in lieu of the dower debt of their deceased mother in the ratio of l/3rd and 2/3rd shares respectively. The contention of defendants Nos. 2 and 3 that the dower debt had been liquidated was negatived. The share of defendant No. 1 was assessed at 50/96th in the houses in suit, that of plaintiff at 25/96th and of defendants Nos. 2 and 3 at 21/96. The suit for partition was decreed with this direction that the plaintiff and defendant No. 1 shall be entitled to remain in actual possession of the houses in lieu of dower debt of their deceased mother in the ratio of l/3rd and 2/3rd respectively till defendants Nos. 2 and 3 obtained declaration to the effect that their share in the dower debt had been paid up or till they actually paid off the same to plaintiff and defendant No. 1. It may be mentioned here that both the Courts had rejected the contention of Smt. Mashkura Begam defendant No. 4 that there was an oral gift in her favour by Smt Afsari Begam.
4. In appeal the findings and judgments of the trial Court were upheld and the appeal was dismissed. It is in these circumstances that defendants Nos. 1 and 4 have come in appeal before this Court.
5. No arguments were advanced before me on behalf of Smt. Mashkura Begam defendant No. 4 and therefore the appeal so far as she is concerned is liable to be dismissed on that ground alone. In so far as Shaikh Aftab Husain defendant No. 1 is concerned the first argument of the learned counsel on his behalf was that the gift deedexecuted by Smt. Najafi Begam in favour of Smt. Sajjad Bano was invalid because it related to an undivided moiety share in houses Nos. 138 and 144 and because of the subsequent gift deed possession of the gifted property had not been delivered to the donee. I have heard Mr. H. N. Tilhari, who is holding brief for Mr. D. K. Trivedi, learned counsel for the appellants and Mr. Shafi-qur Rabman, learned counsel for the plaintiff-respondent and I am of the opinion that this argument is devoid of any force. It is an admitted fact that after the death of Munshi Ah' Mohammad Smt. Afsari Begam, Aftab Husain, Smt. Najafi Begam and Smt. Tayyaba Begam were the only heirs of Munshi Ali Mohammad. The lower appellate Court determined their shares as being l/8th, 14/32nd, 7/32nd and 7/32nd respectively which are no longer in dispute before this Court. It is further an admitted fact that after the death of Munshi Ali Mohammad Smt. Afsari Begam entered into possession of the disputed houses along with Aftab Husain defendant No. 1 and Smt. Tayyaba Begam, her son and daughter as they were also the heirs of the deceased Munshi Ali Mohammad.
The position therefore is that at the time of execution of the gift deed by Smt. Najafi Begam in favour of Smt. Sajjad Bano, Smt. Afsari Begam, Sheikh Aftab Husain and Smt. Tayyaba Begam, the three co-sharers in the houses, were in joint possession thereof. The possession of these co-sharers in the eye of law will be deemed on their behalf as well as on behalf of the fourth, co-sharer Smt Najafi Begam from Which it follows that Smt. Najafi Begam was in constructive possession of the houses at the time of making gift of houses Nos. 138 and 144 in favour of Smt. Sajjad Bano. In addition to being in possession over the houses in her capacity as heir of Munshi Ali Mohammad and being a co-sharer to the extent of l/8th share Smt. Afsari Begam was in possession over these houses in another capacity also, namely, as widow of Munshi Ali Mohammad in lieu of her dower debt, but the nature of her possession in lieu of the dower debt did not detract from the nature of her possession over the houses in her capacity as a co-sharer of the houses, as heir of Munshi Ali Mohammad. It is from this point of view that there appears to be no legal difficulty in the deduction that the possession of Smt. Afsari Begam, Sheikh Aftab Husain and Smt. Tayyaba Begam was for themselves and for Smt. Najafi Begam and that therefore Smt. Najafi Begam must be found to be in constructive possession of the houses which were subsequently gifted by her in favour of Smt. Sajjad Bano. Now Mulla in his Principles of Mahomedan Law, 16th Edition at page 142 in Section 150 lays down the law on the subject as follows:
'It is essential to the validity of a gift that there should be a delivery of such possession as the subject of the gift is susceptible of.'
In the present case since the donor Smt. Najafi Begam was not in actual but in constructive possession over the gifted property it is plain that the property subject of the ' gift was susceptible only of delivery of constructive possession and it is well settled by the highest authority that if there has been a gift of undivided share in the property and the donor has divested himself or herself of possession at the time of making the gift and delivered constructive possession to the donee then the gift is not hit by the doctrine of Mushaa and must be found to be valid in law. The leading case on the subject is Sk. Mohd. Mumtaz Ahmad V. Zubaida Jan, (1889) 16 Ind App 205 (PC). In that case a Muslim lady had gifted her undivided share to her daughter. The validity of this gift was questioned on the ground that since actual possession of the property was not delivered the gift was hit by the doctrine of Mushaa and was invalid. In rejecting this contention their Lordships observed that the lady had merely proprietary, not actual, possession of the greater portion of the property having been merely in receipt of the rents and profits and that she had made the donee possessor of all properties given by the deed, and had abandoned all connection with them and further provided that the donee was to have complete control of every kind in respect thereof. Having found these facts their Lordships concluded:
'Their Lordships have no doubt that sufficient possession was taken on behalf of the daughter to render the gift effectual. If possession were once taken and the deed of gift took effect no subsequent change of possession would invalidate it'
In that case also, as here, upon the facts the donor was not in actual possession but in constructive possession and as it was found from the terms of the gift deed itself that she had abandoned all connection with the gifted property and had transferred complete control of every kind in respect thereof to the donee, it was held that constructive possession of the property had been delivered to the donee and the same was held to render the gift effectual and valid. This authority was relied upon in a case of this Court: Hamid Ullah v. Ahmad Ullah : AIR1936All473 which is almost a direct authority of this Court on a question of the present kind. In that case the subject-matter of the gift was 7/32nd share in six houses and three pieces of land. The gift deed was challenged on the ground that since there had been non-delivery it was hit by the doctrine of Mushaa. While rejecting this plea and upholding the Validity of the gift deed it was observed at p. 295 that the donor admittedly had no physical possession but was in constructive possession through plaintiff and 'it seems to us that there was as complete a transferof the gifted property as the circumstances permitted ......' A perusal of the terms ofthe gift deed shows that it contains the recital that the donor was in possession of the gifted property along with other co-sharers and that the donee was being put into possession of the same in the same manner in which the donor was in possession and that neither she nor her heirs and successors would have anything to do with the property thereof. In this case therefore it is clear from the terms of the gift deed that the donor had completely divested herself not only of the proprietary right but also of possession or control over the gifted property. That being so, having regard to the view taken in the above authorities it is a necessary inference of law that constructive possession which the donor possessed in the property was delivered to the donee Smt. Sajjad Bano. Notice here may be taken of certain authorities on which reliance was placed by the learned counsel for the appellant.
6. The first Is the case of Bibi Bilkis v. Sk. Wahid Ali, AIR 1928 Pat 183. In that case the donor remained in joint possession of the properly after the gift and therefore it was held that the gift offended against the Muslim Law as to Mushaa. The case was clearly distinguishable because on the proved facts the donor was found to be in joint possession of the property with the other co-sharers until his death and after his death his other heirs entered into possession. Clearly therefore an inference of delivery of possession, whether actual on constructive could not possibly be drawn and the case was therefore undoubtedly hit by the doctrine of Mushaa. But in the present case as I have already said., there is every indication of delivery of constructive possession by the donor to the donee.
7. Another case to which the learned counsel referred is: Mt. Bibi Sharifan v. Sk. Salahuddin : AIR1960Pat297 . That case is also distinguishable as it was found as a fact that possession of the property had not been delivered by the donor to the donee. The peculiar feature of the case was that the gift in question was an oral one and the donee had died. Therefore it was not a case In which from the terms of the deed itself one could infer whether the donor had divested himself of possession of the property. In that state of doubt the Court appears to have held the delivery of possession, whether actual or constructive, not satisfactorily proved. It may be mentioned here that at page 303 in para 66 their Lordships of the Patna High Court actually referred with approval the relevant observations with regard to enunciation of law on the subject by their Lordships of the Privy Council in the case of (1889) 16 Ind App 205 (PC) (supra) and in para 68 of the report observed:
'On a consideration of the above cases, it follows ...... each case will be decided onits own facts as to whether possession has or has not been delivered and whether the intention of the donor to divest himself of the property has or has not been carried out.'
Applying this test having found that there was no clear evidence of intention of the donor to divest himself of the property the conclusion was reached that there was absence of delivery of possession and the doctrine of Mushaa was applicable.
8. Lastly, the learned counsel referred to a Lahore case: Said Hassan v. Shah Hussain, AIR 1947 Lah 272. The view taken by the Lahore High Court in this case is contrary to the view of this Court as expressed in the case of : AIR1936All473 (supra). Besides, this case did not take note of the decision of the Privy Council in the case of (1889) 16 Ind App 205 (PC) (supra) and did not give any reasons for the conclusion reached. I therefore hold that the courts below were right in coming to the conclusion that the gift deed by Smt. Najafi Begam in favour of Smt. Sajjad Bano was valid and the doctrine did not apply to the case.
9. The second point raised by the learned counsel for the appellant was that Smt. Afsari Begam plaintiff and defendant No. 1 had perfected title to the property Which was subject-matter of gift to Smt. Sajjad Bano and which was sold by her to Smt Madani Begam. This point was not pressed by the learned counsel for the appellant in arguments.
10. Lastly, it was urged that upon the findings of the courts below that defendant No. 1 had paid Rs. 1500/- in discharge of the outstanding debt of Munshi Ali Mo-hammad the appellant should have been allowed an adjustment for this amount at the time of partition. To my mind there is substance in this submission. It is established from the findings of the courts below that the husband of the plaintiff-respondent had paid Rs. 2000/- to the creditors of Munshi All Mohammad and defendant No. 1 had also paid Rs. 1500/- towards certain debts of Munshi Ali Mohammad. It is therefore fair and just that at the time of partition adjustment should be allowed between the co-sharers on account of these sums which were paid by defendant No. 1 and the husband of plaintiff at the time of partition of their shares in the joint property.
11. I uphold the judgment and decree passed by the lower appellate Court except to the extent that defendant No. 1 and plaintiff-respondent No. 1 shall be entitled to adjustment at the time of partition of their shares to the extent of the amounts paid by them in discharge of the outstanding debts of Munshi Ali Mohammad. The appeal is partially allowed accordingly. The parties shall bear their own costs.