Asutosh Chaudhuri, J.
1. This suit originally was for the possession of 8 annas share in plots Nos. 1 to 6 and for the whole of plot No. 7. The learned Subordinate Judge held that the plaintiff was not entitled to possession of plot No. 7, and the appeal now relates to 8 annas of plots Nos. 1 to 6.
2. These plots of land belonged to one Saber, the father of defendant No. 1. He made a heba of these plots in favour of his widow Sabani Bibi and a foster-son of the name of Kuran. The defence originally was that the heba was executed under the undue influence of Sabani Bibi at a time when the defendant was not present.
3. The learned Munsif held against that contention and after having dealt with the case made by the defendant upon that question he added that the defence was improved at the trial and in the arguments by introducing certain objections. One of these objections was that the gift was invalid on the principle of Musha. He held that the objection was not a purely legal objection but one in which facts had to be found. He appreciated that such a point required to be rejected, specially as no such issue was raised, but unfortunately he dealt with it. The Subordinate Judge held that the doctrine of Musha was not applicable to such lands, because the shares of each of the donees could be ascertained. The donees, as I have said, were the widow and the foster-child.
4. There is no question in this case that possession was given to the donees. The foster-child being an infant, the widow acted as the natural guardian. Although there is no distinct finding that there, was appropriation of the rent derived from these lands in equal shares by the mother and the foster-child, yet there is no doubt that the shares are easily ascertainable. The Privy Council has laid down that 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 Courts have gone far beyond the strict rules. They have not applied the doctrine in the case of undivided Zemindaries where the proprietor of each share was entitled to collect a definite share of the rents. They have not held it to apply to the case of an undivided house in big commercial towns like Rangoon. Why that rule must be applied to the six plots of land held by the mother and the foster-child. I cannot understand. They are practically jointly interested. I, therefore, agree in holding that when the shares of each of the donees can be ascertained, the doctrine ought not to be held applicable. I ought to add that I think it extremely undesirable for the trial Court to deal with points of this character started without any foundation of facts and without any definite issue being framed. They ought to be rejected and not allowed to be argued. To allow them may be prejudicial to the parties concerned.
5. The appeal is, therefore, dismissed with costs.