1. The plaintiff, Mt. Ahmadi Begam, sued for partition of her share of 8 shops and a yard for the collection of wood. This property belonged to her father and the defendants are the other heirs. She claimed a share specified as 1974 out of 6502. The dispute between the parties related to a gift made by the father in his lifetime to the plaintiff of 1,000 sihams. The gift was objected to on two grounds (1) that the father himself not having been in possession at the time could not have given possession to the daughter and so the gift was invalid for want of possession, and (2) that the gift was an invalid one of musha, i.e., an undivided share of joint property.
2. Both the subordinate Courts upheld the contention and held the gift to be inoperative. They further declared plaintiff's title in the property in accordance with the right as an heir ignoring the gift. This is a second appeal by the plaintiff. The learned Judge of the lower appellate Court has not quoted any ruling in support of his view. The father himself was out of possession at the time of the gift and he did all that was possible for him to do in putting his daughter in the same position in which he was. He and his daughter subsequently jointly sued the other co-owners of the property and obtained a decree. Under these circumstances want of possession at the time of the gift would not render the gift invalid. In the case of Mahomed Baksh Khan v. Husaini Bibi [l888] 15 Cal. 684 their Lordships observed at page 702:
In this case it appears to their Lordships that the lady did all she could to perfect the contemplated gift and that nothing more was required from her. The gilt was attended with the utmost publicity. The hibanama itself authorised the donees to take possession and it appears that in fact they did take possession. Their Lordships held under these circumstances that there could be no objection to the gift on the ground that the donor had not been in possession and that she herself did not give possession at the time.
3. This ruling fully supports the claim of the plaintiff that the gift cannot fail for want of possession at the time of the gift.
4. There is a single Judge ruling of this Court Mohibullah v. Abdul Khaliq  30 All. 250 in which the principle enunciated by their Lordships of the Privy Council in the case of Muhammad Mumtaz Ahmad v. Zubaida Jan  11 All. 460 was applied to a house. Possibly the case which was before their Lordships was one where the donor himself questioned the validity of the gift, and it may be argued that it could not be applied generally where no such question of equity arose. This is how Mr. Tyabji interprets the ruling in his book on Mahomedan Law at page 422. This Court however has gone further in the matter and held the gift to be valid even where it is not the donor himself who questions it. We are in agreement with that view. Mr. Amir Ali in his Mahomedan Law has stated the principle to be that a hiba-bil-musha I. e., gift of an undivided joint property is not void, but only invalid, and possession remedies the defect. Mr. Tyabji does not appear to accept that view, but he has suggested a device by which the operation of the doctrine may be condoned, and that device was adopted in the present case. At page 403 he quotes a Hanifi Lawyer as laying down that a gift of a moiety of a house can validly be effected by the donor selling it first at a fixed price and then absolving the debtor of the debt which was the price. This was exactly what the plaintiff's father did, and on this ground also the doctrine of musha will not apply.
5. For these reasons we decree the appeal and declare the share of the plaintiff to be that which she claimed in her plaint. This is a preliminary decree for partition and this declaration will be sufficient. The plaintiff shall receive her costs of all Courts including costs in this Court on the higher scale.