1. This appeal is directed against the judgment and decree passed by the learned Subordinate Judge, first Court, Sylhet, reversing the judgment and decree of the learned Munsif, second Court, of the same place. The plaintiff, who is the respondent before me and who is a minor, instituted the suit for ejecting the defendants, on the ground that they were the tenants of his predecessors-in-interest (defendant 13) but had forfeited their tenancy by denial of the title of the plaintiffs' predecessor-in-interest. The plaintiff's case is that the lands in suit belonged to his grandfather (original defendant 13) who had inducted the defendants on the land as tenants in the year 1322=1915. In the year 1919 he, defendant 13, instituted a suit against the defendants for recovery of arrears of rent, but on the defence taken by some of them that there was no relationship of landlord and tenant, he withdrew the said suit.
2. The Records of Rights prepared under Chap. 10, Ben. Ten. Act, and finally published in the year 1918 having recorded the lands as the lands of defendant 13 and defendants 1 to 12 as tenants under him, the said defendants (Nos. 1 to 12) instituted a suit against defendant 13 in the year 1925 being (No. 570 of 1925) alleging that the entry in the record of rights was wrong. In that suit they alleged that they themselves were co-owners of defendant 13 and that there was no relationship of landlord and tenant between them and defendant 13. They prayed for confirmation of possession as such owners. This suit was decreed by the first Court,, but dismissed by the Subordinate Judge on appeal, whose decision was confirmed in second appeal by this Court. This Court held that defendant 1 to 12 were not co-owners, but were tenants of defendant 13, having been inducted on the land as such in the year 1322. This Court pronounced the judgment on 2nd June 1930, and that judgment establishes the fact that defendants 1 to 12 were tenants of defendant 13 at the date when the plaint in Suit No. 570 of 1925 was filed.
3. On 8th August 1930, defendant 13 made a gift of the property in suit, to the plaintiff, his son's son, who with his father was then living with defendant 13. Defendant 13 delivered over to the plaintiff's father the papers which 1 take it, meant the documents of title and documentary evidence to prove the title of defendant 13, and defendant 13 also asked defendants 1 to 12 to make over possession to the plaintiff. On 19th May 1931 the suit in which the appeal arises was filed, defendant 13 who was then alive was served with summons but did not appear. On his death his three sons were substituted. They did not challenge the gift to the plaintiff and one of them, namely the plaintiff's father, has supported the gift by his evidence. Of the defendants 1 to 12 only defendants 1, 5, 6 and 7 contest the plaintiff's claim. In paras. 9, 15 and 16 of the written statement the position is still maintained by them that defendants 1 to 12 are owners and not tenants. The written statement proceeds on the footing not that the tenancy is still subsisting and has not been forfeited but that there was never any tenancy under defendant 13. The plaintiff's title is also challenged.
4. Against the decree made defendants 1, 5, 6 and 7 have appealed to this Court and two points have been urged before me by them, namely: (i) that the plaintiff has not acquired any titles as the gift is invalid, no possession being delivered to him or could be delivered, as the property was at the date of the gift in the possession of persons claiming a title adverse to the donor; (ii) the alleged denials of relationship of landlord and tenant are not sufficient in law to determine the tenancy.
5. In support of the second contention it is said that the denial in the written statement filed in the rent suit of 1919 cannot in law sustain a forfeiture. There I agree with the contention of the appellant's Advocate, The said denial was not by all the tenants, and even if the denial had been by all the recorded tenants, as all the defendants whom the plaintiff admits to be tenants had not filed the said written statement, the statements made therein are not sufficient in law to sustain a forfeiture of the tenancy: Birendra Kishore Manikya v. Bhubaneswari (1912) 39 Cal 903. With regard to the statements made in the plaint of suit No. 570 of 1925 it is stated that the effect thereof has been neutralised by the judgment and decree passed therein which held the defendants to be tenants. I have already pointed out that the effect of the decision of the High Court was that defendants 1 to 12 were tenants at the date of that suit. The defendants who were plaintiffs in that suit persisted in the course of that and even in this suit in denying the relationship of landlord and tenant and in repudiating the title of defendant 13 I do not think that it is now open to them in Second Appeal to take a somersault, repudiate the written statement which they have filed in this suit, and claim that they are still tenants and mean to retain possession in that character. Such a position was taken before Garth, C J. and Mitter, J. in Suthyabhama Dasseo v. Krishna Chandra Chatterjee (1881) 6 Cal 55 and was repelled. I do not chink that it is now open to the defendants to urge the second point: see also Sarbeswar Bez v. Surendrabala 1920 Cal 272. With regard to the first contention which relates to the validity of the gift to the plaintiff by defendant 13, Mr. Lahiry for the respondent has contended that no delivery of possession is necessary and that mere declaration of intention on the part of defendant 13 to give is sufficient. He bases his argument on the ground that defendant 13 was in the position of loco parentis. According to the Mahomedan law of gifts:
Its pillar (i.e., of a donation) is the declaration of the donor (Wahib), for that constitutes the gift, and it is completed by the act of the owner alone, acceptance being required only for the purpose of establishing the property in the donee (Mowhoob Lechoo): (Baillie's Digest, Book 8, Ch. I, p. 507).
6. Possession must be taken to establish the right of the donee, for the Prophet said that 'a gift is not valid unless possessed: (Inayah Vol. 4, p. 24).' This being the express saying of the Prophet the requisite of delivery of possession can only be dispensed with in the cases expressly recognised by Mahomedan jurists. The scope of the exceptions cannot, be extended in analogous cases. So far as I am aware the Mahomedan jurists make an exception only in the case where the donor is the father or guardian of the donee: Ameerunnessa Khatoon v. Abedanoosa Khatoon (1875) 2 IA 87 and Sultan Miya v. Ajibakhatoon 1932 Cal 497, and then only when the subject-matter of the gift was in the possession of the donor (Hamilton's Hedaya, p. 484, Edn. 2). Speaking of the gift of a father to his minor son Bailie states:
The gift of a father to his infant child is completed by the contract; it makes no difference whether the subject of the gift be in his own hands, or in deposit with another. But if it be in the hands of a usurper, or of a pledgee, or of a tenant who has hired it, the gift is not lawful for want of possession: (Bailie's Digest Book 8, Ch. 5, p. 529).
7. Mr. Ameer Ali in his Tagore Law Lectures points out that this passage which is taken from the Fatwa Alamgiri does not mean that such properties, e.g. properties in the possession of a usurper, tenant or pledgee cannot be the subject-matter of a gift, hut that possession must in such oases be delivered, (Vol. I, p. 66 and 67, Edn, 4). The delivery need not be of khas possession but according to the nature of the gift. In fact it has been held that the property in the possession of tenants can form the subject-matter of a gift, as also there can be a gift under the Mahomedan law of the equity of redemption in respect of lands in the possession of the usufructuary mortgagee: Mullik Abdool Guffoor v. Muleka (1884) 10 Cal 1112 and Taraprossona Sen v. Shandi Bibi 1922 Cal 422. In such cases the mere declaration of intention on the part of the father ('I give') would not pass title to his infant child, but a further act must be done which, having regard to the nature of the right sought to be given away, could be construed to be delivery of possession. For this reason and for the reason that the gift by defendant 13 to the plaintiff when the latter, father, and not he defendant 13, was the guardian it would not confer title on the plaintiff unless possession was delivered. Defendant 13 may have been maintaining both the plaintiff and his father and living with them, but that would not be sufficient to dispense with the delivery of possession. Whatever may have been the view before of the matter, this last point is now settled by the Judicial Committee of the Privy Council in the case of Musa Miya v. Kadar Bux 1928 PC 108. In the case of Sm. Abia Khatoon v. Omar Ali (1930) 132 IC 95, cited by Mr. Lahiry one of the gifts in question was by a grandfather to his predeceased son's minor son. The donor therefore was the legal guardian under the Mahomedan law of the donees, and when Jack and Remfry, JJ. held that no delivery of possession was necessary under the Mahomedan law they were not extending the well recognised exception. The words loco parentis used in the judgment must be taken with the facts of that case. I accordingly overrule the broad contention of Mr. Lahiry noticed above,
8. I have pointed out above that property in the possession of a tenant, mortgagee or wrongdoer can be the subject-matter of a valid gift under the gift under the Mahomedan law. In such cases delivery of Khas possession is not necessary. In the case of property in the possession of tenants, asking the tenants to attorn to the donee or allowing the donee's name to be registered in the revenue registers or the landlord's papers, as the case may be would be regarded as delivery of possession by the donor. In the case of Mohammad Abdul Gani v. Fakhar Jahan Begum 1922 PC 281 at 209 Sir John Edge observe do thus:
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 admittedly authoritative texts of Mahomedan law were promulgated there were not in the contemplation of any one any Transfer of Property Acts, any Registration Act, any Revenna Courts to record transfer of possession of lands, or any zemindari estates, large or small, and that it could not have been intended to Jay down for all time what should alone be the evidence that titles to lands had passed.
9. Dealing with the text of the Durrul. Muktear (Book on Gifts, p. 635) which lays down that no gift can be valid unless the subject of it is in the possession of the donor at the time where the gift is made and that land in the possession of a usurper or of a lessee or mortgagee cannot be made the subject of donation as it cannot be given away. Garth, C.J. in the case of Mullik Abdool Guffoor v. Muleka (1884) 10 Cal 1112 at 1124 observed:
'But we think that this rule, which is undoubtedly laid down in several works of more or less authority must, so far as it relates to land, have relation to cases where the donor professes to give away the possessory interest in the land itself, and not merely a reversionary interest in it. Of course, an actual seisin or possession can-not be transferred, except by him who has it for the time being.
10. The Mahomedan theory of seisin is not so archaic as it is considered to be, and when it is established that property in the possession of a tenant, wrong deer or mortgagee can be the subject matter of a valid gift, the Mahomedan theory of seisin at once furnishes an answer of what can be regarded as delivery of possession in respect of such property. The author of Majm' aa ul-Anhar says thus:
And the meaning of Kabz-ul-kamai (complete seisin) with reference to moveables depend upon their nature, and with reference to immovable property as is suitable to its nature.
11. According fro Dur-ul-Muktiar 'to be in a position to take possession is tantamount to taking possession.' Mr. Ameer Ali in his Tagore Law Lectures (Vol. 1 pp. 113-114) after noticing some of the texts of the Mohamedan jurists notices in particular Kazi Khan and states that according-to that jurist,
ability of the donee, if adult, or of his guardian if a minor, to take possession of the gift, is sufficient to validate the act of donation. Power to take possession is equivalent in certain cases to actual delivery of possession;
and at p. 67 of the same volume ventures the opinion that in the case of property in the possession of a trespasser authority given to the donee by the donor to sue for possession is tantamount to delivery of possession. The same principles can be deduced from the judgment of the Judicial Committee in the case of Kalidas Mullick v. Kanhyalal Pandit (1885) 11 Cal 121. There the question arose whether the gift of a property, in the possession of a person who was claiming adversely to the donor and donee, made before the Transfer of Property Act, was valid under the Hindu law. The Hindu law required delivery of possession in the case of gift or sale. It was no doubt a case relating to Hindu law, but the principle formulated in the said decision has been applied by the Judicial Committee to the Muhamadan law of gift Mahomed Buksh Khan v. Hosseini Bibi (1888) 15 Cal 684. In Kalidas Mullick v. Kanhyalal Pandit (1885) 11 Cal 121. Sir Eichard Couch pointed out that the dispute as to the validity of the gift in question was not between the donor and the donee, but between the donee and a third person in actual possession of the subject at the date of gift and at the date of the suit, who was claiming adversely to both the donor and the donee. Then at p. 232 after examining the cases he observed thus:
In this case the appellant (donee) is under the terms of the gift and according to the construction which their Lordships have put upon the Ikrarnama (deed of gift) entitled to possession, and their Lordships see no reason why a gift or contract of sale of property, whether moveable or immovable, if it is not of a nature which makes the giving effect to it contrary to public policy, should not operate to give to the donee a right to obtain possession. On the principle contended for by the respondent, so long as he prevents the true owner from taking possession, however violently or wrongfully, that owner cannot make any title to a grantee. In this case the donor has, in fact, done all she could, and as she still desires to support her gift there is no question of compelling her to do more.
12. The gift was upheld and a decree for possession In favour of the donee was, made. In the case before me the donor or his heirs did not appear in the suit and did not challenge the gift, the donor had placed the documents of title and documentary evidence in the possession of the donee, put in his powers the means to establish title and recover possession from defendants 1 to 12, and had expressly asked the said defendants to give up possession to the donee. These acts in my judgment amount to such delivery of possession as the subject matter of the gift was capable of. The plaintiff has accordingly acquired a title under the donation and must succeed on its strength. I accordingly uphold the decree made by the learned Subordinate Judge and dismiss the appeal. As the costs of the minor respondent have already been paid there would be no further order for costs of this Court.