Abdur Rahim, J.
1. The finding of both the Courts is that, although by Exhibit 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, it is found that Syed Abdulla, after the date of the gift, obtained pattas in his name and paid lists. 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 finding 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, inasmuch 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 a donee, I should be inclined to hold that such a view of the Muhammadan Law is wrong and to direct a re-hearing of the appeal. Bat I do not read the judgment 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, unnecssary 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 Shaikh Ibhram v. Shaikh Suleman 9 B.K 146 . There West and Nanabai 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 on 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 29 B.K 468 : 7 Bom. L.R. 443.(Jenkins, C. J., and Batty, J.)] but in this High Court by Muthusawmy Aiyar and Wilkinson, JJ in Sharifa Bibi v. Ghulam Mahomed Dastagir Khan 16 M.K 43. and by Subramanya Aiyar and Miller, JJ., in Kandath Veettil Bana v. Mussaliam Veettil Pokru Kutti 30 M.K 305 : 0m. L.T. 180. and by Stanley, C. J. and Burkitt, J. in Allahabad in Humera Bibi v. Najmennissa Bibi. 28 A.P 147 : (1905) A.W.N. 222 : 2 A.L.J 778. In Bava Saib v. Mahomed 19 M.K 343 no doubt, Davies and Boddam, JJ., in one paragraph of their 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.
3. What the Muhammadan Law insists upon is that there should be a complete delivery of seisin, but whether there has been such a delivery in a particular case or not, is mainly a question of fact which must be determined having regard to the intention and the conduct of the parties and the nature of the property concerned. For instanc, if the donee is already in possession of the subjectmatter of gift such as in the capacity of a trustee or bailee or lessee or a pledgee, it is not necessary that the donee should first give up possession and the donor then redeliver possession to him. In such cases, the character of possession changes by a declaration of the gift and acceptance. Ssimilarly, where a father makes a gift to his infant son, transmutation of possession takes plane by virtue of the gift, that is to say, possession by the father as owner of the property, 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 (sic) gift of a piece of cloth in an (sic) box and makes over the box to the donee (See Bailie's Digest 2nd Edition, page 522). Or if the property given island, or a house in occupation of ryots or tenants, a request to them by the donor to attorn to the donee is sufficient delivery of seisin.
4. In Bailie (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 Kazee 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 Bailie, 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 his 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 Bailie's Digest from FatwaKazee Khan, the fact 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 the jurists. They are mere deductions of jurists or applications of certain well established rules in particular cases, actual or suppositional, and, until they are shown to have been accepted by consensus of opinion, cannot be regarded as of binding authority. The distinction between deductions of (sic) in matters, which fall within the proving (sic) had or juristic opinion (mujtahid fit) and rules based on nuss or authority of a text of the Koran or a well known precept of the Prophet or sanctioned by ijma or consensus of opinion, is a principal feature of the Muhammadan legal system and cannot safely be ignored. If, therefore, the dictum cited in Bailie'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 Shaik Ibhram v. Shaik Suleman 9 B. 146 at p. 150. would 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.
5. I agree.