1. The main question for decision in this second appeal is whether the gift under Ex. F, executed on 2lst October 1939 by the plaintiff's father in favor of the plaintiff is valid and effective to pass title to the plaintiff. The trial Court found in favor of the plaintiff and decreed the suit. On appeal the Subordinate Judge held that though the document was proved to have been executed and registered by the donor the gift is invalid for the reason that possession as required by Mahomedan law was not given to the donee. Hence this second appeal. At the time when the gift deed in question was executed, a final decree in a partition suit had been passed vesting various properties that belonged to the co-sharers severally in the several sharers. Plaintiff's father was a party to the partition suit and the properties in question and some other properties were allotted to him. Unfortunately, the decree did not; provide for possession being taken in execution of the final decree in the partition suit. The defendants in the present suit were also parties to the final decree in the partition suit and in that suit, to which the plaintiff's father and the defendants were parties, the suit properties were allotted to the share of the plaintiff's father. The partition decree was passed on 5th March 1938, and the gift deed in favour of the plaintiff (EX. F) was executed on 2lst. October 1939, and it was duly registered. The material portion of the document runs thus:
Whereas I have decided that even during my lifetime suitable properties should be given possession of to you and that you should be made entitled thereto, I have this day by means of this deed gifted to you out of my free will and satisfaction, the under mentioned properties worth about Rs. 3000 which I got for my share in the final decree in that partition suit in O.S. No. 46 of 1932, on the file of the Sub-Court, Tuticorin (which was a suit between me and my mother, etc.) and which properties are in my enjoyment and other properties belonging to me and purchased in my name and out of my own earning and which are in my enjoyment. You have also accepted them and I have left those properties under your control and enjoyment. Hence from this day you are entitled to and enjoy the properties mentioned in the schedule below with absolute rights of ownership according to your will and pleasure from generation to generation with rights to sell, gift and alienate. Since out of my free will, I have gifted away all the under mentioned properties to you and since you have accepted them and since their enjoyment was got to you I hereby declare that I have no power for any reason whatsoever to cancel OE change this gift. Even if I cancel this gift it will not be valid.
2. The plaintiff alleged that her father was in possession of the suit property and that she got possession of the property. The District Munsif held that the donor was in possession on the date of the gift deed, Ex. F, and that he gave to the plaintiff such possession as the property was capable of. He held that it was not necessary that actual possession should be given by the father to the daughter particularly when the donee was living with the donor at the time of the gift deed. He also held that the defendant got into possession of the suit property only in November 1939. Defendant 1, who is the contesting defendant, alleged that the donor was never in possession of the suit property and that he did not in fact give possession to the plaintiff. According to him the suit property was always in the possession' of one Sadak Maracair, the son of the donee's uncle and defendant 1 took possession of the property after purchasing it in court auction held in pursuance of a mortgage decree which he obtained against that Sadak on a mortgage executed by him. Defendant 1 got possession in court auction only in November 1939. The suit gift deed was executed in October of that year. So even if defendant 1 got possession in November 1939, in pursuance of the court sale on which he purchased the property, that would not affect the validity of the gift deed if on the date when the gift deed was executed, all the requirements of Mahomedan law were complied with.
3. Before proceeding further, it is important to notice that the gift deed comprises not merely the suit property which was allotted to the plaintiff's father in the partition decree but also other properties which were admittedly the self-acquired properties of the donor. In fact, four properties, three houses and a wet land are comprised in the gift in question. The first consists of two houses bearing Door Nos. 108 and 175 in the 20th Ward, Tuticorin Municipality, the second is a house bearing Door No. 129 in the same town; the third is wet land bearing Section No. 318/3 and situated in the village of Iruvappapuram, Kumarapuram, Srivaikuntam taluk, and the last item is a house in Madura Municipality. Of these, the property that was purchased by defendant 1 in execution of the mortgage decree against Sadak and which is involved in this suit is the wet field mentioned above. In a case where there are a number of properties comprised in the gift deed and the donee is put in possession of some of them, the High Court of Bombay hold in Chand Sahib Kashim Sahib v. Gangabai A.I.R. 1921 Bom. 248 that the requirements of Mahomedan law are satisfied even as regards the properties of which actual delivery was not made. The requirements of Mahomedan law as to seisin are satisfied in a case where possession of the bulk of the properties is given to the donee. In that case there were a number of fields covered by the gift deed. Possession was given of several of them but not of a few. The question arose whether the gift was invalid as regards the property of which actual possession was not given. The High Court held that in such a case the entire gift is valid. In that case, the property of which possession was not delivered was in the possession of a mortgagee and this High Court has held that in such a case possession is not necessary. But this apart, the Bombay High Court considered the question on the assumption that possession even in such a case was necessary, whether the gift was valid having regard to the fact that all the other properties were put in the possession of the donee. The learned Judges say this at page 1300:
But another question arises whether we should not look at the gift as a whole and not merely look at that portion of it which purported to convey to the donee the equity of redemption in the mortgaged properties. There is here a gift of five properties which are set out at page 1 in the judgment of the Second Class Subordinate Judge in remand. Certain of those properties which were in the possession of the donor were actually handed over to the donee, and our attention has not been drawn to any authority which goes to show that we are bound to split up a deed of gift, by which various properties are given, into its component patts, and consider the gift in respect of that portion of the property of which possession could be given as valid, and in respect of that portion of the property of which possession could not be given as invalid. That being the case, we see no reason why we should not consider that; the principles of Mahomedan law were complied with when possession was given to the donee of the properties then in possession of the donor, and that, would be sufficient to support a claim to redeem the properties which were in possession of the mortgagee.
4. The Judicial Committee held in Muhammad Abdul Ghani v. Mt. Fakhr Jahan Begam A.I.R. 1922 P.C. 281 that delivery of part of the zamindari which was the subject of the gift was delivery of the whole. On pages 314 and 315 the Judicial Committee say this:
But in the Courts below and in this appeal it has been contended that the deed of 7th March 1884, is void so far as it purported to be a gift of the property in question in this suit on the ground that no possession was actually taken of this particular property, and no mutation of names in respect of this particular property was obtained by Lutf-Ullah, Khan until Munni Bibi had died in 1906.
That contention has raised a question by no-means easy of solution. The solution of that question depends upon what are the facts here and upon, what is the rule of Mahomedan law applicable to those facts; in considering what is the Mahomedan law on the subject of gifts inter vivos their Lordships have to bear in mind that when the old and admitted authoritative texts of Mahomedan law were promulgated, there were not in the contemplation of any one any Transfer of Property Acts, any Registration Acts, any Revenue Courts to record transfers of the possession of land or any zamindari estates, large or small, and that it could not have been intended to lay down for all time what should alone be the evidence that the titles to lands had passed. The object of the Mahomedan law as to gifts apparently was to prevent disputes as to whether the donor and the donee intended at the time that the title to the property should pass from the donor to the donee, and that the handing over by the donor and the acceptance by the donee, of the property should be good evidence that the property had been given by the donor and had been accepted by the donee as a gift.
5. Lutf-Ullah-Khan was the donee, and Munni Bibi was the donor, and possession was not taken during Munni Bibi's lifetime. After laying down the three conditions of Mahomedan law as regards a valid gift inter vivos (a) manifestation of the wish to give on the part of the donor; (b) the acceptance of the donee, either impliedly or expressly; and (c) the taking of possession of the subject-matter of the gift by the donee either actually or constructively, the Judicial Committee proceeded thus:
In their Lordships' opinion the whole zamindari property mentioned in the deed, and not parts of it only, must, for the purposes of this case, be regarded as one property, the taking possession of any part of it being constructively a taking possession of the whole. The wish of Munni Bibi to give that property to Lutf-Ullah-Khan and his acceptance of it on 7th March 1884, are clearly manifest from a perusal of the deed which he received and acted upon.
6. The only distinguishing feature between that case and the present one is that the property involved in this suit is a wet field situated in one taluk and the other properties are in other taluks. This is the distinction relied upon by Mr. Venkatachariar, the learned advocate for the respondent; but I do not see how that is really a distinction which is material. In this case, the suit property is a portion of the entire property covered by the gift. As such there is considerable force in the argument of the appellant that the case is covered by the decision of the Judicial Committee in Muhammad Abdul Ghani v. Mt. Fakhr Jahan Begam A.I.R. 1922 P.C. 281. But Mr. Venkatachariar draws my attention to Sadik Husain Khan v. Hashin Ali Khan A.I.R. 1916 P.C. 27 a decision of the Judicial Committee. The present question was not the subject of decision by the Judicial Committee. There a Mahomedan made a settlement reciting that Rs. 85,000 was due by the settlor to his wife for her dower and that it had been agreed between the parties that the settlement should be in full satisfaction of the dower debt, and that for the consideration stated the settlor granted certain properties to the trustees upon trust to pay the net income of the properties to his wife for her life and after her death upon trust for all the children of the settlor and his wife living at the time of his death. The document was never executed by the wife, and there was no evidence, independent of the deed, to show that any agreement was ever entered into between the settlor and his wife that she would accept the provision made for her in the settlement in satisfaction and discharge of the unpaid balance of her dower. The first question was whether the settlement operated as a conveyance for consideration or as a gift. Having regard to the fact that the wife was not a party to the deed and that she never accepted it, the Judicial Committee held that it was to be treated as a mere gift. So treating it, the question arose whether the requirements of Mahomedan law as to delivery of possession were complied with. The trustees were the persons in whom the legal estate in the subject-matter of the gift vested for the benefit of the beneficiaries. On evidence, the Judicial Committee held that nothing was done by the donor which amounted to delivery of possession of the properties, and that nothing was done by the trustees or the wife amounting to proof of the acceptance of the gift or of an election to take under the deed. It was also pointed out that the conduct and actions of the wife were entirely inconsistent with any such intention on her part. The trustees never entered under and by virtue of the trust deed into the receipt of the rent or income of the property comprised in the document, and there was no proof that possession of any portion of the property which was the subject of the gift was ever delivered by the settlor to the trustees. On the finding that the gift was never accepted either by the wife or by the trustees, the transaction failed to take effect even as a gift. Then coming to the question of possession, the Judicial Committee pointed out that the properties which were the subject of the settlement consisted of certain house properties in Calcutta and of some villages in the United Provinces. It was urged before the Judicial Committee that there was evidence to show that the trustees took possession of the house in Calcutta and it was argued that there being possession of part of the property, the gift took effect even as regards the villages situated in the United Provinces. Dealing with this aspect of the case the Judicial Committee said this on p. 657:
There is no satisfactory evidence, therefore, in their Lordships' opinion, that the trustees ever entered, under and by virtue of the trust deed, into receipt of the rent or income of the property comprised in the mortgage sued upon, and consequently there is no satisfactory proof that the possession of this portion of the property, the subject of the gift, was ever delivered by the settlor to the trustees.
Even if the proof of the receipt of the rent of the Kothi, 13, Russell Street, Calcutta were so satisfactory as to support the conclusion, that possession of it had been delivered to the trustees at the date of the trust deed, or indeed at any time during the lifetime of the settlor, which in their Lordships' view, it is not, the receipt of the rent of these premises, differing altogether as they do in nature and character from the property mortgaged, separated by many miles from these jagir villages, and not forming with them one concrete whole, would furnish no proof whatever of the delivery by the settlor to the trustees of his shares in the villages mentioned in the mortgage. Their Lordships are, therefore, of opinion that possession of the property mortgaged not having been proved to have been delivered the gift is, according to the Mahomedan law applicable to the case, void, and that the mortgage, sued upon is therefore a valid and a binding instrument and a good security.
7. Having regard to the prior findings of the Judicial Committee that there was no acceptance of the gift by the wife or the trustees and that in fact there was no evidence of the receipt of rent even of the Calcutta property, these observations can only be regarded as obiter. These observations cannot, in my opinion, be relied upon in the face of the direct decision of the Judicial Committee in the case already referred to, Muhammad Abdul Ghani v. Mt. Fakhr Jahan Begam A.I.R. 1922 P.C. 281. The decision of this Court, in Nynar Mohamed Rowther v. Kandasami Kulathu Vandan (1912) 35 Mad. 120, is very strongly relied on. In that case it was held that delivery of possession is essential and that without such delivery the gift is invalid. Abdur Rahim J. who delivered the leading judgment said this on p. 128:
The reason for the rule requiring delivery of seisin in order to complete the gift is that such a disposition of property being without consideration, the donor if he has failed to divest himself completely of every interest in the property he cannot be called upon to do any act in order to give effect to his intention. This is the juristic ground on which the condition as to delivery of possession is based and is stated as the second argument of the Hanafi doctors, at p. 482 of Hamilton's 'Hedaya'.... But it is however argued that the rule should not be applied in a case where the donor himself is not in possession of the property, because the result of that would be to unduly hamper free disposition of property. On this point also it seems to us that the view of the Hanafi authorities is clearly opposed to the stppellant's contention.
8. The question that I have to decide did not arise for decision in that case. Here a portion of the property a good portion of it was according to the appellant delivered to the donee and the question is whether the gift takes effect as a whole, i.e., even as regards the property of which possession was not delivered owing to the fact that the donor was not in possession at that time. Further, in this case the donor has done all that he could do to enable the donee to recover possession of the property from the person in whose possession it then was. Whether even in such a case the gift is invalid did not arise for decision in the above case. There no portion of the property that was the subject of the gift was in possession of the donor and there could therefore be no case of delivery of a portion of the property in the possession of the donor. Further it seems to me that there is much force in the argument of the learned advocate for the appellant that in view of the later decision of the Judicial Committee in Muhammad Abdul Ghani v. Mt. Fakhr Jahan Begam A.I.R. 1922 P.C. 281 much of the reasoning of Abdur Rahim J. in the above case will have to be reconsidered. As the Judicial Committee pointed out in the above case, at the time when the Mahomedan jurists laid down the law as to delivery of possession being essential for the validity of a gift:
There were not in the contemplation of any one any Transfer of Property Acts, any Registration Acts, any Revenue Courts to record transfers of the possession of land, or any zamindari estates, large or small, and that it could not have been intended to lay down for all time what should alone be the evidence that titles to lands had passed. The object of the Mahomedan law as to gifts apparently was to prevent disputes as to whether the donor and the donee intended at the time that the title to the property should pass from the donor to the donee, and that the handing over by the donor and the acceptance by the donee of the property should be good evidence that the property had been given by the donor and had been accepted by the donee as a gift.
9. Had the question therefore directly arisen before me, I should have felt the necessity of referring the matter to a Bench whether the decision in Nynar Mohamed Rowther v. Kandasami Kulathu Vandan (1912) 35 Mad. 120 can be regarded as good law after the decision of the Judicial Committee in Muhammad Abdul Ghani v. Mt. Fakhr Jahan Begam A.I.R. 1922 P.C. 281. The text-writers are also of opinion that Nynar Mohamed Rowther v. Kandasami Kulathu Vandan (1912) 35 Mad. 120 requires reconsideration. The case before me, as I have already pointed out, is quite different from that which was considered in the Madras case. If possession of the bulk of the properties was, as alleged by the appellant, actually given to the donee, I hold that the entire gift would be valid. The question whether possession of the other properties comprised by the gift deed was actually given to the donee has not been considered. Though there is no reason to suppose that they were not delivered, yet the respondents are entitled to have a finding on that question. I therefore call upon the lower appellate Court to return a finding whether possession of the other properties covered by the gift deed was given to the donee. Fresh evidence may be adduced by both parties. Time for submission of findings two months from the date of receipt of the records by the lower appellate Court. Seven days for objections.