1. The finding of both the Courts is that although by Ex. A the mother and the aunt of Syed Abdulla who sold the house in dispute to the plaintiff purported to make a hiba or simple gift of the property to the said Abdulla, yet in fact they never relinquished possession of it, but continued to live in it as before with, their other children. The District Judge also finds that the continued residence of the donors in the house was not in the capacity of tenants at will of the donee. At the same time itf is found that Syed Abdulla after the date of gift obtained pattas in his name and paid kists. The conclusion which the Lower Courts seem to arrive at, is that there was no transmutation of possession and the District Judge in more than one place in his Judgment calls the transaction a paper gift. If this be the correct reading of the findings of the Lower Courts, there can be no doubt that the gift is invalid and the plaintiff's suit was rightly dismissed.
2. But it is urged that the Lower Appellate Court misapplied the Muhammadan Law relating to hiba in as much as it relies on the fact that the donors did not leave the house at the time of making the gift but on the other hand, continued to reside in it as showing that there was no change of possession. If I thought that the Lower Appellate Court had acted on the notion that as a matter of substantive law there must be a formal departure of the donor from the premises the subject of a gift and a formal entry on the part of the donee, I should be inclined to hold that such a view of the Mahammadan Law is wrong and to direct a re-hearing of the Appeal. But I do not read the Judgments under appeal in that light. What the District Judge meant to find was, that there was in fact no transmutation of possession at all and in coming to that conclusion he was entitled to take into consideration the fact that the donors never left the house but went on living there with their children till their death. He treated this fact as a piece of evidence showing that there was no change of possession and I think rightly so. It is therefore unnecessary to determine the question which has been discussed before us at some length whether the Muhammadan Law requires that there should be a formal departure of the donor from the land or house the subject of a hiba and a formal entry therein on the part of the donee. I may however observe that the question seems to be settled by a series of rulings of the different High Courts beginning with Skiek Ibrahim v. Shiek Suleman and Ors. I.L.R. (1884) B. 126. There West and Nanabhai Haridas JJ. laid down ' 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. He occupies certain part and this occupation becoming actual possession by ?the will of the parties extends to the whole which is in immediate connection with such part, where the possession is rightfully though not where it is wrongfully taken. An appropriate intention where two persons 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.' This principle has been accepted in the later decisions not only of the Bombay High Court (See Bibi Khaver Sultan v. Bibi Rukhia Sultan and Ors. I.L.R. (1905) B. 468 Jenkins C.J. and Batty J.) but in this High Court by Muthuswami Iyer and Wilkinson JJ. in Sharifa Bibi v. Goolam Muhammed Dmtagir Khan and Ors. 16 M.k 43 and by Subramania Aiyar and Miller JJ. in Kandath Veetil Bava alias Avuthala v. Musalia Vutil ParaJcuti and Ors. I.L.R. (1907) M. 305 and by Stanley C.J. and Burkitt J. in the Allahabad High Court in. Humera Bibi v. Najam Unnisu Bibi I.L.R. (1905) A. 147
3. In Bava Sahib and Anr. v. Muhammad I.L.R. (1896) M. 343 no doubt Davies and Boddam JJ. in one paragraph of the Judgment observe that when a house, the subject of the gift continues to be occupied by the giver there is no complete gift, but by this they did not apparently intend to lay down a hard and fast rule. All that they meant was to illustrate the proposition which they had enunciated in the previous paragraph viz., that the gift will be null and void when the donor continues to exercise any act of ownership over the property. What the Muhammadan Law insists upon is that there should be complete delivery of seisin : but whether there has been such delivery in a particular case or not is mainly a question of fact which must be determined having regard to the intention and conduct of the parties and the nature of the property concerned. For instance, if the donee is already in possession, of the subject matter of gift such as in the capacity of a trustee or bailee or lessee or pledgee, it is not necessary that the donee should first give up possession and the donor then re-deliver possession to him, In such cases the character of possession changes by a declaration of the gift and acceptance. Similarly where a father makes a gift to his infant son transmutation of possession takes place by virtue of the gift, that is to say, possession by the father as owner of the property; the subject of the gift is changed into possession under the gift as guardian of the infant donee. That the Muhammadan Law does not require any particular mode of delivery of possession is further illustrated in the following cases. For example, if the donee is placed in a position to take possession of the thing given, that would in many cases be deemed sufficient as when a man makes a gift of a piece of cloth in an open box and makes over the box to the donee (See Baillie's Digest 2nd Edition page 522). Or if the property given is land, or a house in the occupation of ryots or tenants a request to them by the donor to attorn to the donee is sufficient delivery of seisin.
4. In Baillie (page 527) it is laid down that if a man should make a gift of a mansion in which there are some effects belonging to him and should deliver the mansion to the donee or deliver it with the effects, the gift would not be valid. The statement which is based on the authority of Kazu Khan's Fatwa is cited in some later collections of Fatwas or opinions of jurists and commentaries with disapproval. The principle which governs such cases is stated to be (see Baillie page 528) that the thing given being occupied with the property of the donor prevents the taking of possession which is necessary to the completion of the gift. But it is also mentioned that if a deposit be first made of the effects with the donee the donor vacating them for him and then making delivery of the mansion the gift would be valid. The inference I draw is that the gift of a house in which there are goods of the donor is invalid if the continued occupation of the house with the goods be as of right and not by the license of the donee. As regards the form in which the above proposition is stated in Baillie's Digest from Fatwa Quidithan the facts must be borne in mind that most of the Fatwas or opinions of jurists were delivered in answers to abstract questions intended to illustrate a certain principle of law and it would be entirely misleading to treat such opinions as absolute rules of law having the same authority as a text of the Koran or an universally accepted ruling of the prophet or a proposition established by Ijma or consensus of opinion of jurists. They are mere deductions of jurists or applications of certain well established rules in particular cases actual or suppositionary and until they are shown to have been accepted by consensus of opinion cannot be regarded as of binding authority. The distinction between deduction of a jurist in matters which fall within the province of Ijlihad or juristic (opinion mujtahidfil) and rules based on nuss or authority of a text of a Koran or a well known precept of the Prophet or sanctioned by Ijma or consensus of opinion is a principle feature of the Muhammadan legal system and cannot safdy be ignored If therefore the dictum cited in Baillie's Digest be read as a mere illustration of the rule that complete possession must be given in order to make a gift valid, the principle enunciated in Shiek Ibrahim v. Sheik Suleman and Ors. I.L.R. (1884) B. 150 iwould seem to me in accordance with Muhammadan Law. But the finding in this case being as I have stated, that there was no complete change of possession, the second appeal must be dismissed with costs.