1. Now that we have had the document of the 27th August 1897 translated, I think that the appellants being the tangals are clearly entitled to the money which represents the share assigned to the mosque by Mahomed. By that document he gave the tangals power to collect his share of the estate of Kunhayan Koya. They would, I apprehend, have been entitled to demand from the Collector the whole of Mahomed's share in the particular fund and having collected it to keep a third for the mosque, In my opinion this is not a case to which the doctrine of musha can be applied, assuming that the doctrine is in force in this Presidency. I would reverse the award and remand the case for disposal according to law. The costs will abide the result.
2. In this case one Kunhayan is said to have held a kanom usufructuary mortgage over certain land for Rs. 100. On Ms death his rights as kanomdar are said to have passed to his widow his half sister and his father's brother's son's son, Mahomed as sharers under Mahomedan law. This Mahomed assigned one-third of his share by a registered deed of gift to the 7th and 8th defendants in the suit. The land was taken up under the Land Acquisition Act and the 7th and 8th defendants claimed a share of the compensation paid.
3. The Subordinate Judge disallowed their claim on the ground that the gift was invalid under Mahomedan Law because the property given was not put into the possession of the donees, and also because what was given was an undefined share and therefore invalid according to Mahomedan law by reason of 'Musha' or confusion. The questions raised for our determinations are--
1. Whether the rules of Mahomedan law are applicable to the case? and
2. If so, whether the gift is invalid according to that law?
4. I am of opinion that the Mahomedan Law as such and of its own force has no application, but the rule which would be applicable to such a case under Mahomedan law may be applied by us if it is in accordance with Justice, equity and good conscience to do so. This is clear from Section 16 of the Madras Civil Courts Act, 1878, which enacts as follows:
Where, in any suit or proceeding, it is necessary for any Court under this Act to decide any question regarding succession, inheritance, marriage or caste, or any religious usage, or institution.
(a) the Mahomedan Law in cases where the parties are Mahomedans, and the. Hindu Law in cases where the parties are Hindus, or ;
(b) any custom (if such there be) having the force of law and governing the parties or property concerned, shall form the rule of decision unless such law or custom has by legislative enactment been altered or abolished;
(c) in cases where no specific rule exists, the Court shall act according to justice, equity and good conscience.
5. The validity of the gift in this case is not 'a question regarding succession, inheritance, marriage or caste, or any religious usage or institution,' and therefore, the rules of Mahomedan law with regard to gifts are not necessarily the rules by which we should decide the question. This view is in accordance with that of the Full Bench of the Allahabad High Court in Gobind Dyal v. Inayat Allah I.L.R. 7 A. 755. In construing the Bengal Civil Courts Act, it was there held that 'the court is not bound to administer the Mahomedan Law in claims of pre-emption, but on grounds of equity that law has always been administered as between them in claims of pre-emption.'
6. Again in the Full Bench case of Sheikh Kudratulla v. Mahini Mohan Shaha 4 B.L.R. 134 Sir Barnes Peacock, Chief Justice, says at page 169, 'The Mahomedan Law is not the law of British India. It is only the law so far as the laws of India have directed it to be observed. * * * We are bound by Regulation IV of 1793, except so far as that law has been modified by Regulation VII of 1832.' He then refers to Section 15 of the former Regulation which is, for our present purposes, similar in terms to the Bengal Civil Courts Act, 1871, and to Section 16 of the Madras Civil Court Act. So also in the case reported in Ibrahim Saib v. Muni Mir Udin Saib 6 M.H.C.R. 26 Holloway, Acting C.J., says at p. 31, 'The Mahomedan Law binds Mahomedans no more than others except in the matters to which it is declared applicable. It is then law because of its reception as one of our law sources in the matters to which it applies. Where, however, not so received it can only be prevailing law because consistent with equity and good conscience * * *. The question, therefore, resolves itself into whether it is consistent with equity and good conscience to import an exceptional rule opposed to the principle of law administered here.' He then examined the ground on which the rule of Mahomedan law as to pre-emption sought to be enforced in that case was founded and concluded 'I am of opinion that it is manifestly opposed to both equity and good conscience and that no such obligation in this Presidency binds a Mahomedan or any one else.'
7. It was suggested in argument that Section 129 of the Transfer of Property Act by implication makes the Mahomedan Law applicable, but this is not so. Section 129 merely enacts that, 'nothing in this chapter (as to gift) shall be deemed to affect any rule of Mahomedan Law,' that is, if there is any rule of Mahomodan Law which is administered as law by the Courts, it shall not be affected by anything in this chapter It will continue to be administered as law by the Courts just as if this chapter was not enacted. In considering this section of the Transfer of Property Act and, also in considering the case law of other parts of India, it is necessary to bear in mind that in the Civil Courts Acts of many provinces, the Mahomedan law of gifts is specifically declared to be applicable in those provinces as between Mahomedans (e. g., Central Provinces, Section 5, Act XX of 1875, Punjab, Section 5, Act XII of 1878, Oudh Section 3, Act XVIII of 1876). In those Provinces the Mahomedan law as to gifts applies by virtue of the Civil Courts Acts and is not affected by the rules of the Transfer of Property Act as to gifts. In other parts of India rules of Mahomedan law, though not made applicable by legislation have been adopted by the Courts and in accordance with equity and good conscience have been consistently enforced, as such, between Mahomedans. Some of the rules of the Mahomedan law of pre-emption have in this way been adopted in Bengal and in the North-West Provinces, though not in Madras. Such rules would apparently be unaffected by the Transfer of Property Act so long as the Courts continued to enforce them as being in accordance with equity and good conscience.
8. Turning now to the facts of the present case, I am of opinion that the gift is not invalid for either of the reasons assigned by the Subordinate Judge. The rule of Mahomedan law with regard to 'Musha' is defined by the Privy Council as the rule 'that a gift of an individual share in a subject capable of division is not good because it would lead to confusion.' We have not been referred to, nor am I aware of any case in which this Court has held that the rule as laid down in Mahomedan law is applicable in this Presidency. In the case of Hussain v. Shaib Mere I.L.R. 13 M. 47 a father having a share in a house gave to his daughter a moiety of the share to which he was entitled. Objection was taken to the validity of the gift because of confusion or Musha but the Court held that the gift was not invalid for indefiniteness. I can see no reason why the present gift should be regarded as more indefinite or more likely to lead to confusion than the gift in that case. In the Privy Council case already referred to, Mahomed Buhsh Khan v. Hosseini Bibi I.L.R. 15 C. 684 their Lordships referring to the doctrine of Musha Observed that by Mahomedan law one of two sharers might give his share to the other and add' supposing there are three shares what is there to prevent one of the three giving his share to either of the other two? Mr. Doyne was asked what confusion that would introduce. Mr. Doyne took refuge in the doctrine itself which he said was a very refined doctrine. To extend it to this case would be a refinement on a refinement amounting, in their Lordships' opinion, almost to a reduction absurdum,' page 701. The fact seems to be that the doctrine of Musha is a vague and shadowy one. There is nothing to show that it has been addopted by the Courts in this Presidency, nor is there any reason in equity and good conscience why we should hold that the present gift is invalid because of indefiniteness.
9. With regard to the objection that possession was not given to the onees, I observe that the Mahomedan law adopted by our Courts does not require immediate possession to be given in all cases, and it may be doubted whether even the restricted rule as to possession is any longer adopted to modern requirements and whether the mode of transfer laid down as obligatory on Europeans and Hindus by Section 123 of the Transfer of Property Act, and adopted by the parties in this case, viz., by registered instrument attested by two witnesses and signed by the donor, ought not in equity and good conscience to be held to be as efficacious as delivery of possession in the case of Mahomedans. The certainty, publicity and formality which attend delivery of possession are at least as well secured by a registered and attested instrument, and no case has been quoted in which a transfer evidenced in this way has been held to be invalid in this Presidency for want of delivery of possession
10. In the case reported in Khader Hussain Sahib v. Hussain Begum Sahiba 5 M.H.C.R. 114 the document was apparently not registered and the donor continued to take the profits of the land until her death. However that may be, in the case reported in Mahomed Buksh Khan v. Hossein Bibi I.L.R. 15 C. 684 already referred to, the Privy Council held that it was not necessary for the donor to give immediate possession to the donees; and that where the instrument entitles the donee to take possession and the donor has done all in his power to perfect the contemplated gift, no objection can be taken to the gift on the score of want of possession by the donor or because possession was not given to the donee at the time. In this case, Exhibit I gives the donees authority to realise the property 'from tenants and others who are in possession' by means of suits or by negotiation. The gift, therefore, cannot be regarded as invalid for want of possession in the donor or donees at the time of transfer.
11. I would, therefore, set aside the award of the Subordinate Judge and remand the petition for disposal according to law.