1. The plaintiff appellant in this case is suing to recover possession as the heir of one Musammnt Maksud-un-nisa of certain property in the hands of the defendant, and the defence with which we are concerned is that the lady above-mentioned had, on the 11th of January 1900, that is to say, almost 8 years prior to her death, transferred the property intuit by a registered deed of gift to the first defendant Ilahi Baksh. In the Court below, the execution of this deed of January 11th, 1900, was put in issue, and questions were also raised as to the mental capacity of the lady-donor at the time of the gift and as to the influence exercised over her by the defendant, Ilahi Baksh. In the memorandum of appeal now before us, the question of the factum of execution is again raised. We think it sufficient to say that, after considering the evidence, we find no reason whatever to dissent from the conclusion arrived at by the lower Court on this point. There is a mass of evidence as to the execution of this deed; and we do not think that it is in any way adequately rebutted by the inconclusive evidence of the witness Muhammad Husain, who was called as an expert on the question of the thumb impression. We have also examined the evidence of the two witnesses, Asad Ali and Sahibuddin, who were called on behalf of the plaintiff to give evidence regarding Musammat Maksud-un-nissa's mental capacity. On this point, also, we think that the evidence of the witnesses for the plaintiff is of very small value, and is entirely outweighed by the evidence on the other side.
2. The main point argued before us relates to a portion only of the gifted property, although we are informed that it is the most important and valuable portion. The deed of January the 11th, 1900, purports to transfer to Ilahi Baksh the right of Maksud-un-nissa to receive a specified share in the offerings made by pilgrims at a certain shrine in the town of Amroha. It is contended before us that such a gift is invalid under Muhammadan law, because it is a gift of a thing not in existence at the time and incapable of that actual seizin which the Muhammadan law requires in order to make a gift valid. We think that the thing gifted in this case must be regarded as being the right of the donor to receive a fixed share in the offerings after they have been made, and this is an enforceable right in the sense that it is enforceable in law as against other co-sharers in the same. Upon the analogy of a transfer by gift of shares in a trading company, it seems to us that the transaction in this case is a transfer of an enforceable right within the meaning of the principle laid down in Mr. Amir Ali's Muhammadan Law, Vol. I, p. 27 of the 3rd edition. It is, moreover, a gift of a thing which had a marketable value at the time when the gift was made, because we find on the record abundant evidence that shares in the right to receive offerings at the shrine have been made the subject of transfer in the past by way of sale as well as by way of gift. In this view, the transfer in question is different from the making of a gift of what a particular tree might bear in a certain year, as referred to in the 'Fatwa Alimgiri,' Vol. IV, p. 374, quoted at page 36 of Mr. Amir Ali's book already referred to. On behalf of the appellant, reliance was placed on the case of Amtul Nissa Begam v. Mir Nur-ud-din Hussein Khan 22 B. 489. We think that that case is clearly distinguishable from the one now before us. We may add that we are quite satisfied on the evidence that there was in this case an effective transfer from the donor to the donee and that the latter obtained from the date of the deed of gift such possession as the thing transferred was in its nature capable of. This appeal, therefore, fails and we dismiss it with costs including fees on the higher scale.