(1) Defendants 1 to 9 are the appellants. Katheeja Bi, the 10th defendant, had three sons, Abdul Razack, Abdul Subhan and Abdul Shukoor. Abdul Razack died in 1944. Abdul Subhan died in 1947. Under the Mohammedan law on the death of these sons Katheeja Bi became entitled to a one-sixth share in their estates. On 17-6-1948 she executed a deed of settlement, Ex. A. 1 whereby she gave the one-sixth share which she inherited in the estate of Abdul Razack as also the one-sixth share which she inherited in the estate of Abdul Subhan jointly to plaintiffs 1 and 2.
The first plaintiff, Mariam Bi, it may be stated, is the only daughter of Katheeja Bi and the second plaintiff is the husband of Mariam Bi. On the strength of this settlement deed the plaintiffs instituted O. S. No. 81 of 1948 on the file of the Subordinate Judge, Vellore, for the partition of the estate of Abdul Razack. That suit was compromised on 23-1-1950 and the plaintiffs obtained for themselves the properties set out in Ex. B. 2. In September or October 1950, the plaintiffs instituted the suit, out of which the present appeal arises, for partition and separate possession of the estate of Abdul Subhan wherein they claimed a one-sixth share on the basis of Ex. A. 1.
(2) The defendants put the plaintiffs to strict proof of the truth, validity and due execution of the settlement deed, Ex. A. 1. They took the further plea that even if Ex. A. 1 is proved to be genuine and to have been executed by Katheeja Bi with complete comprehension of its contents still the settlement deed is void since it offends against various rules of Mohammedan law. The learned Subordinate Judge overruled these contentions and decreed the suit as prayed for. Defendants 1 to 9 have therefore appealed.
(3) It may be mentioned here that Katheeja Bi died in 1952 while the suit was pending in the trial court and that no one has been specifically added as her legal representative.
(4) It seems to us that the genuineness of the settlement deed is beyond question. The evidence shows that Katheeja Bi went to the house of P.W. 1, a leading advocate of Vellore, and told him what she wanted to be done. He thereupon drafted the document Ex. A. 1 and it was typed in his office. A junior of his, who has subsequently become a Judicial Magistrate, made certain corrections in the document. Thereafter it was attested by three persons one of whom was P.W. 2 P.W. 2 deposed that at the time he gave evidence both the other attestors were dead. Katheeja Bi herself presented the document for registration and it was duly registered.
(5) The next question is whether when Katheeja Bi executed the settlement deed she had a complete comprehension and full understanding of the nature of the document and the effect of the dispositions she was making.
(6) Here it must be borne in mind that a gift deed executed by a pardanashin lady stands in a peculiar position. As explained in Farid Unnissa v. Mukhtar Ahmed, 52 Ind App 342:(AIR 1925 PC 204):
"The real point is, that the disposition made must be substantially understood and must really be the mental act, as its execution is the physical act, of the person who makes it;................ If, however, the settlor's freedom and comprehension can be otherwise established, or if, as is the respondents' case here, the scheme and substance of the deed were themselves originally and clearly conceived and desired by the settlor, and were then substantially embodied in the deed, there would be nothing further to be gained by independence advice.......... They must satisfy the court that the deed has been explained to and understood by the party thus under disability, either before execution, or after it under circumstances which establish adoption of it with full knowledge and comprehension."
See also Inche Noriah v. sheik Allie, 56 Mad LJ 349:(AIR 1929 PC 3), where their Lordships observed:
"It is necessary for the donee to prove that the gift was the result of the free exercise of independent will. The most obvious way to prove this is by establishing that the gift was made after the nature and effect of the transaction had been fully explained to the donor by some independent and qualified person so completely as to satisfy the court that the donor was acting independently of any influence from the donee and with the full appreciation of what he was doing; and in cases where there are no other circumstances this may be the only means by which the donee can rebut the presumption."
(7) Katheeja Bi was the first plaintiff in O. S. No. 81 of 1948 on the file of the Subordinate Judge, Vellore, and, P.W. 1, Mr. Krishnaswami Aiyar was her advocate. While that suit was pending Katheeja Bi sent a registered notice to Mr. Krishnaswami Aiyar which as shown by Ex. B. 1 was received on 29-8-1949 at his residence. That notice is said to have been mislaid and Mr. Krishnaswami Aiyar could not produce the original. But D.W. 2 deposed that he had attested that notice and that so far as he could recollect it was to this effect. Katheeja Bi did not know the contents of the settlement deed.
It was in English. She was asked to sign in it and so she signed in it. She desired one-sixth share to go to her son's sons. Mr. Krishnaswami Aiyar was asked not to go on with the case against the son's sons. The settlement deed appeared to be in favour of her daughter. She did not want her advocate to go on with the case on her behalf.
(8) On the strength of this notice the argument was advanced that Ex. A. 1 must have been even if genuine in the sense that Katheeja Bi actually executed it, obtained from her under circumstances that would not make it binding on her. Some fraud or deception must have been practiced on her and her thumb mark obtained to Ex. A. 1 Otherwise, it was contended, such a notice would not have been issued at all.
(9) Now, if the matter had rested just here and there were no other circumstances throwing light on the mind and conduct of Katheeja Bi one might probably have accepted the contention of the appellants or their part of the case. However, there are quite a number of circumstances pointing, and decisively pointing, to a difference conclusion. It must be borne in mind that we do not know the circumstances under which the notice referred to in Ex. B. 1 came to be sent by Katheeja Bi to Krishnaswami Aiyar.
All that we know is that about that time she was apparently living in the house of Abdul Shukoor. According to D.W. 2 it was Abdul Shukoor who sent for him to attest that notice. D.W. 2 saw Abdul Shukoor in the house in which Katheeja Bi was staying at the time she affixed her thumb mark to the notice referred to in Ex. B. 1. What influence had been brought to bear upon her at the time one does not know. But, it is perfectly clear that less than two months later Katheeja Bi sent Ex. A-2 to Mr. Krishnaswami Iyer completely repudiating her earlier notice.
Besides she went on with the suit till it was compromised on 23-1-1950. Thereafter the present suit was instituted and Katheeja Bi chose to remain ex parte, which means in the context that she wanted the plaintiffs to succeed in their action. The subsequent conduct of Katheeja Bi constitutes a complete repudiation of the notice referred to in Ex. B. 1. Be it recalled that the deed of settlement was executed in 1948 and that Katheeja Bi died only in 1952, that is, some four years later. Except for the solitary notice evidenced by Ex. B. 1-and as we already stated, we do not know the circumstances under which the notice came to be issued--the conduct of Katheeja Bi shows that for the remaining years of her life, she stood by the settlement deed.
This would never have happened if Ex. A. I had been obtained from her by coercion or by the exercise of undue or improper influence. It is also reasonably clear that at the time the document was prepared its contents must have been fully explained to her. She went to P.W. 1 and consulted him. He then prepared a draft in accordance with her instructions. It was typed in his office. A junior of his made certain corrections and amendments and it was thereafter that Katheeja Bi executed the document. P.W. 1 was asked whether Katheeja Bi was "capable of understanding her actions at the time she executed Ex. A. 1" and whether it was read over to her and he then gave this answer: "Yes. It must have read over to her." An Advocate in the position of P.W. 1 could hardly say more than this. It is impossible to expect a person in his position to have specific recollection whether a particular document was read over to the person concerned.
(10) The evidence of P.W. 2, an attestor of the document, however makes the matter very much clearer:
"The document Ex. A. 1 was typed in Sri D. Krishnaswami Aiyar's office.....Vakil D. Krishnaswami Iyer wrote the draft. We four were present then. At that time no one else was present. The vakil after drafting, translated the writing to us and then handed the same to his clerk and directed him to type."
There is no reason why the evidence of P.W. 2 should not be believed.
(11) Another important circumstance here is that the document was not prepared in a rush or hurry. Form the village where Katheeja Bi lived with her son-in-law they went to Vellore in connection with this document. They appear to have spent at least two or three days at Vellore. It is also useful to bear in mind that if there had been any grounds for suspecting anything wrong or improper it is hardly likely that an Advocate of the standing of P.W. 1 would have proceeded further in the matter.
One other circumstance which is not wholly devoid of significance is this. In Tamil districts Muslims do not observe purdha with the same rigidity and strictness as in some other parts of the country. Very often the purdha is a matter of form. In addition it must be remembered that at the time she executed Ex. A. 1 Katheeja Bi was advanced in years, and in the case of such elderly persons there would not be the same insistence on the observance of purdha as in the case of girls and of young women.
(11a) Taking all the circumstances of the case we are satisfied that Katheeja Bi executed Ex. A. 1 with full understanding and comprehension of its contents and that the document did not incorporate anything which was not in accordance with her intentions.
(12) Mr. Gopalaswami Aiyangar for the appellants argued that even so the settlement must fail for these reasons. Delivery of possession is essential to validate a gift of property under the Mohammedan law. Katheeja Bi the donor was not in possession of any part of the property at the time she purported to make the gift deed, Ex. A. 1. Since she was not in possession she could not naturally have given possession. besides, Ex. A. 1 is a gift in favour of two persons jointly and such a gift is bad.
What Katheeja Bi purported to make a gift of, was an undivided share in the estate of each of her sons and the gift of an undivided share is bad. The transaction offends against every principle of Mohammedan law relating to musha. Mr. Gopalaswami Aiyangar reinforced his arguments by referring to Mst. Bilkis Bibi v Wahid Ali, ILR 7 Pat 118:(AIR 1928 Pat 183), where it was observed that the doctrine of musha is not an archaic rule of law and although not favored, cannot be ignored or repudiated.
(13) In dealing with these arguments it is well to bear in mind the following observations of the Privy Council in Muhammad Mumtaz Ahmed v Zubaida Jan, ILR 11 All 460 at p. 475.
"The doctrine relating to the invalidity of gifts of musha is wholly unadopted to a progressive state of society, and ought to be confined within the strictest rules."
The question whether a gift to two donees jointly is bad was considered in Ebrahim v. Bai Asi, ILR 58 Bom 254:(AIR 1934 Bom 21). We quote the relevant passage:
"There was a second argument placed before me, to the effect that 'A gift of property, which is capable of division, to two or more persons without dividing it, is invalid; but it may be rendered valid if separate possession is taken by each donee of the portion of the property given to him................. I cannot accept this argument. The authority of the Fatawa Alamgiri and Hidaya is directly against it."
(14) This view was adopted in Kaniz Fatima v. Jai Narain, ILR 23 Pat 216 on pages 221 and 222: (AIR 1944 Pat 334 at pp. 336, 337), Manoher Lall, J., observed,
"In the case of ILR 58 Bom 254:(AIR 1934 Bom 21), Tyabji, J. has examined the subject at great length and I respectfully agree with his observations. I do not see why a donee of musha who has taken joint possession of the subject of a gift, and who finds it convenient and practicable to continue to hold that property without partition, should not be allowed to do so. All that the law is concerned to find is that before the validity of such a gift is declared, the donor must have parted with complete possession in favour of the donee, and then it is the lookout of the donee as to whether he wants a partition or not.
If the donor had partitioned the property and given it to a donee in a definite share, the donee could still hold the property as a tenant in common with his co-sharers and no question could have been raised regarding the validity of the gift. The same result, in my opinion, should follow provided the donee has been found to be in possession."
(14a) In Kalu Beg v. Gulzer Beg., ILR 1946 Nag 510:(AIR 1946 Nag 357), it was held,
"When there is delivery of possession under a gift made jointly to two persons and the donee at some subsequent date either divide the property among themselves or arrange that one should have the entire gifted property, the doctrine of musha ceases to operate and that which was irregular in the beginning becomes valid."
(15) So far as we are aware there is no decision of this court directly in point. We find ourselves in respectful agreement with the views of Tyabji, J. in ILR 58 Bom 254:(AIR 1934 Bom 21) and of Manohar Lall, J. in ILR 23 Pat 216:(AIR 1944 Pat 334).
(16) We would best observe that the rules of Mohammedan law do not require that to make a gift valid the donor must have physical possession of the property and must hand over that physical possession to the donee. It is enough if he has got legal possession of the property and transfers to the donee such possession as the matter is susceptible of. In the present case when Abdul Razack died Katheeja Bi became a co-heir along with the widow and children of Abdul Razack. Similarly when Abdul Subhan died Katheeja Bi became a co-heir along with the widow and children of Abdul Subhan.
The possession of one co-heir is ordinarily possession on behalf of all. It must also be emphasized that in June 1948 when Katheeja Bi executed Ex. A.1 her claim is to be the heir of her sons Abdul Razack and Abdul Subhan had not been challenged or called in question by any one. The possession of the other heirs was possession on her behalf also. And, we may properly say that she was actually in possession of the estate. It was explained in ILR 23 Pat 216:(AIR 1944 Pat 334):
"Possession of a co-owner or a co-tenant is a possession which has to be recognised by the law."
In Ex. A. 1 Katheeja Bi distinctly stated that thereafter she ceased to have any interest in the schedule mentioned properties and she expressly declared that the settlee,
"will be entitled to work out the settlor's rights in the properties described below by taking appropriate proceedings."
The only manner in which Katheeja Bi could have got physical possession of any part of the property was by instituting a suit for partition, and, under Ex.A. 1 she armed the donees with the requisite power. In effect, therefore, she gave the donees such possession as the property was capable of.
(17) One other observation must be made. The reason for the rule that the gift of an undivided share is bad is to be found in the desire to avoid what has been described as confusion. If the property is capable of separate possession but nevertheless the donor does not separate what he intends to give from his other possessions, how is one to find out what he intended to give? And if we do not know what he intended to give, but still try to give something there is bound to be confusion. The reason of the rule is wholly absent in a case like the present where the donor gave away the entirety of her interest in the estate. It was held in Zahuran v. Abdus Salam, AIR 1930 Oudh 71:
"A definite share in immovable property, zamindari, houses or shops, is a separate estate with separate and defined rents. The rule of musha, therefore, which aims at prohibiting confusion between estates gifted and not gifted is wholly inapplicable to such an estate............ We may legitimately ask as was asked by Lord Macnaughten in the case of Mohammed Buksh Khan v. Hossein Bibi, ILR 15 Cal 684:15 Ind App 81(PC), what confusion can it introduce if the owner of a definite share in immovable property makes a gift of that share in favour of another person and has himself nothing left in that property after the gift? It seems to us that the only answer that can be given to this question is in the negative."
In Nazir Din v. Mohammed Shah, AIR 1936 Lah 92 at pp. 95, 96, Din Mohammed, J. observed:
"It will be manifest from the above that the original rigidity of the rule of Musha has been considerably relaxed in its application to British India and in almost all cases, which have come up before the courts here as well as before the Privy Council, an effort has been made to adapt the rule to its new environments and so to interpret it as to make it consistent with the principles of justice, equity and good conscience.
The courts in this country have given effect rather to the spirit of the rule than to its letter and have upheld gifts in all cases in which the intention to give on the part of the donor had been expressed in most unequivocal terms, and had further been attended by all honest efforts on his part to complete the gift by divesting himself of the control over the property in such a manner as would clearly imply his divestiture in the eye of the law of the land.
The raison d'etre of this rule was the avoidance of gifts that were vague, indefinite or incomplete, and the only test that should be applied in such cases is whether the gift in question is open to any of these objections; or in other words, whether the donor has still reserved to himself a loop-hole of escape or not. If this is not so and if the donor has done all that the law of the land requires to be done to separate himself from the property, a gift of Musha will be as valid as that of property which can be physically handed over to the donee."
(18) The case in Hamidullah v. Ahmadullah, AIR 1936 All 473, is also in point. The subject-matter of the gift there was an undivided 7/32 share in six houses and three parcels of land. The donor was not in physical possession but only in constructive possession of the property. She executed a deed of gift and had it registered. The document recited that the donor was conveying to the donee the same sort of possession which she had. The gift was upheld. The court observed,
"She admittedly had no physical possession but was in constructive possession through the plaintiff.......................... She however put the donee in a position to obtain possession and it is fact as stated in the plaint that the defendant donee instituted a suit for his share of the rents on the basis of this deed of gift.............. Mst. Haliman did practically all that she was able to do in a way of divesting herself of possession and giving to the donee-defendant the same possession as she had herself."
In Tyabji's Principles of Mohammedan Law, 2nd Ed. page 423, the following passage appears:
"The courts are inclined to uphold a gift of Musha, i.e., of an undivided part of property, except where the omission to separate the portion of the property which is the subject of gift from the rest of it, is taken as an indication that there has been, in effect, an incomplete transfer, which the donor would have completed by partition, had he intended to complete the gift."
This statement of the law was approved in ILR 7 Pat 118:(AIR 1928 Pat 183) and ILR 58 Bom 254: (AIR 1934 Bom 21).
(19) It will be appreciated that in the present case Katheeja Bi could not have done anything more whatever to complete the gift. There are certain observations in Mohideen Sahib, in re, , which are directly in point:
"Two points were raised by Mr. Parthasarathi Aiyangar, learned counsel for the appellant in this case. One is that the learned Judge, Basheer Ahmed Sayeed, J. erred in law in holding that the gift by the second defendant to the plaintiff of his share in the suit property was valid. The contention was that as the donee was entitled only to an undivided share, the gift was invalid, because of the doctrine of musha under the Mohammedan law. As the learned Judge observed, the prevailing view is that a gift of an undivided share which is capable of division is not void.
Learned counsel for the appellant did not dispute this but argued that such a division could be made only by the donor himself and relied on the decision of the Lahore High Court in Said Hassan v. Shah Hussein, AIR 1947 Lah 272.................. In the case before us the facts are entirely different. The donor has made a gift of his entire interest to the plaintiff. That interest was a share in a property. It will not be possible for the second defendant to voluntarily effect a division and then deliver his share to the plaintiff.
In our opinion, if the gift is otherwise valid, in a case like this, there can be no impediment to the court directing a partition between the donee in the right of the donor and the other sharer, the first defendant in this case."
(20) One final observation must be made and it is this. The question whether possession has been delivered is relevant only when an issue is raised between the donee or those claiming under him on the one side and the donor or those claiming under him on the other. Where a gift is otherwise proper a stranger cannot invoke the rule that the gift is bad because there has been no delivery of possession. In ILR 1946 Nag 510:(AIR 1946 Nag 357), Bose, J. observed:
"I have decided in Halimbi v. Rahmatali, ILR 1941 Nag 669, 672:(AIR 1940 Nag 70 at p. 72), that the question of delivery of possession is only relevant as between the donor and those who claim under him or her and the donee. If the donor upholds the gift then it is not open to strangers like the present defendants to question it on the ground of want of delivery of possession."
We think that this is the proper way of looking into the matter.
(21) All the contentions raised by Mr. Gopalaswami Aiyangar fail. In the result, the appeal fails and is dismissed with costs.
(22). Appeal dismissed.