Madhavan Nair, J.
1. The defendant is the appellant. This second appeal arises out of a suit instituted by the plaintiff, his mother, for the possession of a house on the ground that she was driven out of it by him and that the gift-deed executed by her in respect of it in his favour is not valid and binding. The subject-matter of the gift is a dwelling-house which the plaintiff, the donor, got from her second husband. The appellant, the donee, is her son by her first husband. Some time after the death of the appellant's father, the respondent was married by her second husband. He also died. The appellant lived with his mother in the suit house before the date of the gift. At the time of the gift and subsequently also they lived in the same house. On account of differences between her and her daughter-in-law, the plaintiff was forced to leave the house. In the pleadings and as shown by the issues, her case was that the suit document was brought about by fraud and undue influence, but it was also urged during the course of the trial, as may be seen from paragraph 15 of the Munsif's judgment, 'that it had not been proved that possession had been duly given to the defendant at the time of the gift and that therefore the transaction has become incomplete and is void'. On both the points the learned District Munsif found against the plaintiff and dismissed her suit. On appeal the learned Subordinate Judge first dealt with the question 'Is the gift invalid for nondelivery of possession' and as on this point he found in favour of the plaintiff he did not consider the other question arising in the suit and consequently allowed the appeal and gave her a decree. The learned Judge based his decision on Shed Ahamad v. Ibrahim (1919) 52 I C. 314 in which Newbould, J., of the Calcutta High Court, stated that
in cases where the donor and the donee reside on the property, a gift of the property tinder the Mahomedan Law may be completed by some overt act by the donor indicating a clear intention on his part to transfer possession and to divest himself of all control over the subject-matter of the gift.
2. In this case the learned Judge pointed out that there was no overt act to indicate that the plaintiff has transferred possession of the property to the donee.
3. The facts relating to the transfer of possession which are borne out by the evidence are these: in the gift-deed there is a recital to the effect that the property has been delivered to the donee. At the time the deed of gift was executed the plaintiff is said to have stated that the donee was already in possession. The learned Judge stated that these facts do not show that there was a change of possession, as the donee and the donor lived together in the house at the time of the gift. Subsequent to the gift the house tax was being paid by the appellant. The learned Judge held that this fact also was of no importance as even before the gift he used to pay the tax and as nothing was produced by the appellant to show there was mutation of names in the house tax register subsequent to the date of the gift to indicate that possession has been delivered over to the donee.
4. On behalf of the appellant it is argued that, having regard to the relationship of the parties, the mere residence of the donor with the donee does not show that there was no transfer of possession, considering the fact that the gift had been made by means of a registered deed which recited that possession had been given to the donee and that all that could be done under the circumstances that was possible to show transfer of control of the house had been done in the case, and that therefore no overt act such as actual delivery of possession or mutation of names in the Municipal registers, etc., was necessary to make the gift a valid one. On behalf of the respondent it is contended that the joint residence shows that there has been no complete abandonment of possession by the donor and that, even if no actual delivery need be proved, there must be evidence to show that complete relinquishment of possession was made by the donor; and that the circumstances of the case do not show that there has been such complete relinquishment. A large number of cases was cited on either side in support of the respective contentions. I shall discuss these cases as it is clear that the question involved in this case cannot be dealt with as a pure question of fact; indeed it has not been so dealt with in any of the cases brought to my notice and the counsel for the respondent has also not asked me to deal with it in that way.
5. It is well settled that under the Mahomedan Law delivery of possession is necessary to make a gift of immoveable property valid but this does not mean - and this is not disputed by the learned Counsel for the respondent - that physical departure or formal entry is necessary in the case of a gift of immoveable property in which the donor and the donee are both residing at the time of the gift. Ordinarily cases of this kind do not present much difficulty as clear evidence will be forthcoming to show there has been a transfer, such as mutation of names in favour of the donee in the revenue or other registers, or management and enjoyment of the property by the donee. Similarly there may be evidence of management of the property by the donor despite the gift to show that there has been no transfer. The difficulty arises only in cases where such evidence, one way or the other, is absent and these have to be scrutinised carefully especially so, when the point is not taken either in the pleadings or in the issues.
6. The gift deed, Ex. A, which is a registered document, runs as follows:
Gift executed in favour of Abdul Razak Saheb by Zinubi Ammal...The house described hereunder I have to-day given by way of gift and to-day I have put you in possession of the said house. Therefore you can happily enjoy the said house worth Rs. 500 from generation to generation with powers of gift, sale, etc., and all right to water, etc. Hereafter to the said house myself or my heirs shall have no manner of right or claim.
7. In the document the donor states clearly that on the date of the gift 'I have put you (donee) in possession of the said house' and that the donor has no right or claim to it thereafter and that the donee may enjoy it for ever with all the rights of an owner. This is a solemn declaration made by the donor. There can be no doubt, so far as can be gathered from the document, that the donor's intention to transfer possession of the house to the donee is clear and that he has also stated in the document expressly that she has put the donee in possession thus effectuating her intention. In such a case, even though the donor and the donee lived together on the property at the time of the gift, can it be deduced from the decisions of Courts that there is sufficient delivery of possession in law and that actual transfer of physical possession is not necessary to complete the gift? This is the question I have to decide in this case. I shall now examine the cases and first deal with the decisions of our Court.
8. In Bava Saib v. Mahomed I.L.R. (1896) 19 Mad. 343. where a Muhammadan woman made an oral gift of a house to her nephew on the occasion of his marriage, but subsequent to the gift continued to live with him in the house, it was held that the gift was null and void, as there was no entire relinquishment of the house by the donor and the case did not fall within the exceptions allowed by Muhammadah Law, these exceptions being, where the house gifted is given by a husband to a wife or by a father or guardian to his minor child or ward. This decision is very much relied on by the respondent, but two things must be noticed, namely, that the gift being an oral one, nothing could be inferred regarding the delivery of possession from the mere fact that there was a gift, and that in a subsequent decision in Kandath Veettil Bava v. Musaliam Veettil Pakrukutti I.L.R. (1907) 30 Mad. 305 'the language of the Court' was stated to be 'somewhat wide' and it was also stated that 'the learned Judges only intended to suggest that the donor's possession after the alleged gift would be evidence that the gift was incomplete'. No doubt in the latter case, the Court upheld the gift only because there was sufficient evidence to show there was transfer of possession but it must be remarked that no inference regarding the transfer of possession could be made in this case also as the records show (see District Munsif's judgment) that there was no document to evidence the Streedhanam grant. The decision in Bava Saib v. Mahomed I.L.R. (1896) 19 Mad. 343 was not followed in Alla Pichai Tharaganar v. Mahomad Moideen (1914) 23 I.C. 520 also. As already observed both in Bava Saib v. Mahomed I.L.R. (1896) 19 Mad. 343 and in Kandath Veettil Bava v. Musaliam Veettil Pakrukutti I.L.R. (1907) 30 Mad. 305 though there the gifts were proved, obviously nothing could be inferred regarding the intention of the donor or of the transfer of possession; but the same cannot be said about the case before us, the gift having been made by a registered document which shows the intention of the donor and says pointedly that the donee was put in possession. That in such a case actual transfer of physical possession is not necessary to complete the gift when the donor and the donee are living together on the property forming the subject-matter of the gift follows from the decision in Humera Bibi v. Najm-un-nissa Bibi I.L.R. (1905) 28 All. 147 which is accepted as laying down the correct law by this Court in Kandath Veettil Bava v. Musaliam Veettil Pakrukutti I.L.R. (1907) 30 Mad. 305 which I have referred to. In that decision the learned Judges, after referring to Humera Bibi v. Najm-un-nissa Bibi I.L.R. (1905) 28 All. 147, stated that 'we agree with the view therein adopted'. The decision in Humera Bibi v. Najm-un-nissa Bibi I.L.R. (1905) 28 All. 147 has been strongly relied on by the appellant. In that case a gift was made of some property by an -aunt to her nephew. Both lived together in the house included in the gift deed at the time of the gift. In the document it was stated that the donor not merely made a gift of the property to the donee but also put him in proprietary possession of it. It also contained a further statement that the donee had accepted the gift and taken possession of the property. In addition to these statements in the document there was evidence to show that mutation of names was effected in favour of the donee. The validity of the gift was questioned 13 or 14 years after the gift, and there were other circumstances and evidence regarding plaintiff's conduct. No doubt there are strong circumstances which distinguish the case from the present one but, so far as the gift deeds are concerned, both the cases are alike except in this, that the gift deed in that case contained a statement that the donee had taken possession of the property also. In these circumstances, it was argued that, there being no transfer of possession of the house in which the parties resided as is necessary to satisfy the requirements of the Mahomedan Law, the gift was invalid. It is true that the decision is based on all the facts of the case but there is sufficient indication in the judgment to show that, apart from the special distinguishing features, the statements in the document formed the main basis of the learned Judges' decision. For they state as follows:
We are not prepared to hold that, in a case such as the present, actual physical departure of the donor from a house which is the subject of a gift evidenced by a written instrument is necessary in order to complete the gift by delivery and possession. On the contrary, we think that, if the parties are present on the premises, it is sufficient that an intention on the part of the donor to transfer the possession has been unequivocally manifested. There can be no doubt in this case that such an intention was unequivocally manifested. In the document itself it is expressly stated that the plaintiff not merely made a gift of the property to Minnat-ullah, but also put him into proprietary possession of it, and a further statement that Minnat-ullah had accepted the gift and taken possession of the property.
9. After stating thus they pointed out that in addition to this there was mutation of names, etc. Then they referred to the decision in Shaik Ibhranv v. Shaik Suleman I.L.R. (1884) 9 Bom. 146 in which the necessity for actual delivery in the case of a gift of a house in which the donor arid donee lived at the time of the gift was considered. In that case the subject of the deed of gift was a dwelling-house in which the donor was residing at the time of the gift and continued to reside up to the time of the death along with the donee. The District Judge held that no relinquishment on the part of the donor had taken place and that the gift was therefore inoperative. The decision was set aside and the learned Judges observed as follows:
As to the delivery of the house, the principle is to be borne in mind, that when a person is present on the premises proposed to be delivered to him, a declaration of the person previously possessed puts him into possession. An appropriate intention where two are present on the same premises may put the one out as well as the other into possession without any actual physical departure or formal entry, and effect is to be given, as far as possible, to the purpose of an owner, whose intention to transfer has been unequivocally manifested.
10. After referring to these observations' in Shaik Ibhram v. Shaik Suleman I.L.R. (1884) 9 Bom. 146 the learned Judges in Humera Bibi v. Najm-un-nissa Bibi I.L.R. (1905) 28 All. 147 referred to Amir Ali's book on Mahomedan Law and pointed out that the learned author did not disapprove of that decision. I think the decision in Shaik Ibhram v. Shaik Suleman I.L.R. (1884) 9 Bom. 146 strongly supports the appellant. This decision may be said to be impliedly accepted in this Court as it has expressly accepted Humera Bibi v. Najm-un-nissa Bibi I.L.R. (1905) 28 All. 147 which relies on this decision. Both these cases and Bava Saib v. Mahomed I.L.R. (1896) 19 Mad. 343 have been referred to in Vahazullah Sahib v. Boyapati Nagayya I.L.R. (1907) 30 Mad. 519 : 17 M.L.J. 562 but they have not been discussed as a finding was called for 'as regards the transmutation of possession'. The decision in Rahiman Bi v. Mahomed Fatima Bibi (1914) 23 I.C. 651 is not much helpful as it discusses the question of law only generally and as it dealt with the gift of a house by a father to his minor son which involves the application of certain special presumptions under the Mahomedan Law. Coming to the recent decisions of this Court in Ajagar Hazar Saheb v. Annammah A.I.R. 1927 M. 572 with regard to the argument that, inasmuch as the donor lived with the donee, it must be held that he did not deliver possession to her. Mr. Justice Devadoss observed as follows and these observations in my opinion may well be applied to the present case:
We have to see what the intention of the donor is. From Exhibit B it is quite clear that he divested himself of all his property and that he wanted to be maintained by the plaintiff. That being so, can it be reasonably contended that his mere living in the house meant that she had no possession of the house? When a man makes a gift of property to a near relation who is living with him, the mere fact that he happens to live with him after the gift is made is not a sufficient circumstance to hold that possession did not pass. (The italics are mine.) Each case would depend upon its circumstances. If the intention of the donor is clear that the donee should have possession of the property, the mere fact that the donor happens to live after the date of the gift with the donee in the house which is the subject of the gift would not by itself entitle the Court to hold that possession had not passed and that possession remained with the donor
and then the learned Judge proceeded to consider the evidence which also showed that there must have been effective transfer of possession. The decision in Muhammed v. Ummanaikani Ammal A.I.R. 1927 Mad. 593 strongly supports the appellant. In that case the gifts were of portions of the family dwelling-house in which the parties have all along been living. The learned Judge, Wallace, J., held that actual divesting by the donor and delivery to the donee was not necessary in this case, such possession as is suitable and possible in the circumstances having been given. In the case of one of the deeds the donee was a minor and this fact was referred to as an additional reason for holding that the intention to give declared in the deed was sufficient to hold that there was delivery. This consideration does not affect the present case. This was only an additional reason given in one of the cases. I do not think that the Madras decisions compel me to hold that in the case of a gift of a dwelling-house in which the donor and the donee who are close relations lived together at the time of the gift, it will be necessary for the donee to prove an overt act on the part of the donor to show that there has been a transfer of possession to validate the gift under the Mahomed an Law, when the document shows an intention on the part of the donor to divest himself of possession and contains an explicit statement that the donee has been put in possession and nothing to the contrary has been proved by the donor. Each case must be decided with reference to its own circumstances. None of the decisions I have examined is opposed to the appellant's contention; on the other hand one of them, Muhammed v. Ummanaikani Ammal A.I.L. 1930 Mad. 593, distinctly supports him, whilst another Ajagar Hazar Saheb v. Annammah : AIR1927Mad572 , contains observations directly applicable to the present case.
11. Now, coming to the decision of the other High Courts, I have already referred to a decision of the Allahabad High Court and to one decision of the Bombay High Court. Two other decisions of the Bombay High Court may also be referred to: Abdul Majid Khan v. Husseinbu (1919) 55 I.C. 952 and Musa Miya v. Kadar Bux (1928) L.R. 55 IndAp 171 : I.L.R. 52 Bom. 316 : 54 M.L.J. 655 (P.C.). The first is relied on by the appellant and the other, which is a Privy Council decision, by the respondent. In Abdul Majid Khan v. Husseinbu (1919) 55 I.C. 952 the decision in Shaik Ibhram v. Shaik Suleman I.L.R. (1884) 9 Bom. 146 was followed; but it was observed that it does not follow in every case necessarily that where two are present, possession must be deemed to have been transferred. The question as to whether the donor intended to transfer the possession at the time of the gift must be answered with reference to the facts of each particular case and in that case it was pointed out that the evidence at the trial definitely showed that there was no transfer of possession. In the case before us there being no such evidence, the decision in Shaik Ibhram v. Shaik Suleman I.L.R. (1884) 9 Bom. 146 may well be applied. The decision in Musa Miya v. Kadar Bux (1928) L.R. 55 IndAp 171 : I.L.R. 52 Bom. 316 : 54 M.L.J. 655 (P.C.) is not helpful as it related to an oral gift and the absence of delivery of possession was sought to be explained by relying on an exception to the general rule. The donor in that case was the grandfather and the donee the grandson. It was observed by their Lordships that the general rule of Mahomedan Law that a gift is invalid in the absence of delivery of possession is subject to an exception in the case of a gift to a minor by his father or guardian. But this exception should be strictly construed. It does not extend to a gift by a grandfather to his minor grandsons if their father is alive and has not been deprived of his right and powers as guardian, even though the minors have always lived with the grandfather and have been brought up and maintained by him.
12. In Dalpheroo Mian v. Bangali Mali (1922) 71 I.C. 897. the Patna High Court while affirming the general rule that in order to complete the gift under Mahomedan Law the donor must even if only for a time abandon possession of the property gifted in favour of the donee referred with approval to the decision in Shaik Ibhram v. Shaik Suleman I.L.R. (1884) 9 Bom. 146 but in the case before them the learned Judges held that the transfer of possession was not proved because 'beyond the written deed of gift there is no such unequivocal intention manifested; on the contrary, the donor soon after the deed of gift, joined in mortgaging the house' which was the subject-matter of the gift. The contents of the document are not mentioned in the judgment but it is clear that they did not give effect to the intention if any was expressed in it because the evidence showed that the donor had acted contrary to such intention. Probably beyond the bare deed there was nothing to support delivery of possession in that case. In the case before us, as I have already said, the document states that the donee was put in possession and there is no evidence on the part of the donor that she acted in a way which will show that she did not part with possession as in the Patna case.
13. The appellant next relied on Rahmat Ali v. Daulat Bibi A.I.R. 1925 Lah. 501, a decision of the Lahore High Court. This decision is very much like the present case. After discussing the case-law on 'the subject it was held that actual transfer of physical possession is not necessary to complete a gift incases where the donor and the donee live in the gifted house. The fact that 'the donor continued to live in the same house for about a month after the date, of the gift which he had made by means of a registered deed, does not show that possession was not given to the donee where it is so expressly stated in the deed'. (The italics are mine)(see the head-note).
14. Mr. Somayya for the respondent besides relying on those of the above-mentioned cases which seem to support him relied also on paragraph 127 of Mulla's Muhammadan Law, the third paragraph of which dealing with delivery of possession of immoveable property where the donor and the donee both reside in the property states as follows:
No physical departure or formal entry is necessary in the case of a gift of immoveable property in which the donor and the donee are both residing at the time of the gift. In such a case the gift may be completed by some overt act by the donor indicating a clear intention on his part to transfer possession aud to divest himself of all control over the subject of the gift.
15. The cases given in support of this proposition are Shaik Ibhram v. Shaik Suleman I.L.R. (1884) 9 Bom. 146 and Abdul Majid Khan v. Husseinbu (1919) 55 I.C. 952. I have examined above, both these cases and have shown that the law stated in one of them regarding the delivery of the house in that case distinctly supports the appellant; in the other case the learned Judges held that it was distinguishable from the decision in Shaik Ibhram v. Shaik Suleman I.L.R. (1884) 9 Bom. 146 and that the question as to whether the donor intended to transfer the possession at the time of the gift must be answered with reference to the facts of each particular case. These cases affirming the general principle that in order to complete a gift some overt act on the part of the donor is necessary, to show how in special cases, circumstances may render the general principle inapplicable. The appellant does not contend against the general proposition of law stated in the book but what he says is that the law being what is stated therein, in a case like the present, effect should be given to the intention of the donor clearly indicated in the gift deed and to the express statement contained in it that the donee has been put into possession. This contention is supported by abundant authority.
16. Having regard to the decisions which I have discussed, my conclusions so far as they relate to this case are these:
(a) that a gift of immoveable property under Mahomedan Law is invalid in the absence of delivery of possession by the donor;
(b) where the donor and the donee live together at the time of the gift in the gifted property, there must be some evidence to show that possession was transferred by the donor;
(i) a mere registered deed evidencing the gift will not be evidence of such transfer; but
(ii) if the deed shows that possession was intended to be transferred and that the donee has been put in possession also, then effect should be given to this intention as constituting delivery of possession in law unless there is evidence to the contrary. In such a case it is not necessary for the donor to do any overt act to complete the gift.
17. These conclusions are supported by the decisions in Shaik Ibhram v. Shaik Suleman I.L.R. (1884) 9 Bom. 146, Abdul Majid Khan v. Husseinbuc (1919) 55 I.C. 952, Rahmat Ali v. Daulat Bibi A.I.R. 1925 Lah. 501, Humera Bibi v. Najm-un-nissa Bibi I.L.R. (1905) 28 All. 147 and Dalpheroo Mian v. Bangali Mali (1922) 71 I.C. 897. I do not think that the Madras decisions brought to my notice are opposed to these conclusions; on the other hand two of them clearly support them.
18. I have already referred to the general features of this case, but to one fact I wish especially to draw attention. In my opinion, the learned Judge has not attached sufficient importance to it. The defendant has been paying the Municipal tax for the house after the gift. It is true that he used to pay it even before the gift but it was not right on this ground to ignore the significance of the subsequent payment in the face of the express statement in the document that the defendant has been put in possession of the house. That being so, the right way to construe the subsequent conduct of the defendant is in the light of that statement. In this case, I think in the light of Ex. A, payment of Municipal taxes by the defendant subsequent to the gift may be taken as a sufficiently clear indication that transfer of possession has been made by the donor. If so, there is no difficulty in the case at all. Even without relying on this item of evidence, I have already shown that there has been such transfer of possession in this case as would validate the gift under the Muhammadan Law. Having regard to the relationship of the parties the mere residence of the donor with the donee does not show that there was no transfer of possession. In my opinion all that could be done under the circumstances to show there was transfer of possession has been done in this case; and that in a case like the present, an overt act on the part of the donor is not necessary to complete the gift. The decision relied on by the learned District Judge Shed Ahamad v. Ibrahim (1919) 52 I.C. 314 is distinguishable as we know nothing about the contents of the 'Lebanama' in that case; probably it mentioned the bare fact of gift and contained nothing about the intention of the donor, possession by the donee, etc.
19. For the above reasons I would hold that the learned Judge's decision is wrong on the first point. It follows therefore that the case cannot be decided without a finding on the second point which has not been dealt with by him and which in my opinion is the substantial point in the case. I would therefore call upon the learned Subordinate Judge to submit a finding on point No. 2 noted in his judgment, namely, 'Is the gift vitiated by fraud, misrepresentation or undue influence?' The finding is to be submitted within 'four weeks after the receipt of this order; time allowed for objections is ten days.
20. In pursuance of the above order the Lower Appellate Court submitted a finding to the effect that Ex. A was not vitiated, by fraud, misrepresentation or undue influence.
21. The case coming on for final hearing after the return of the finding the Court delivered the following