1. S.A. No. 73 of 1932.-The subject-matter of the litigation which has given rise to this appeal is a tank with its banks. The plaintiff derived his title by virtue of a deed of gift dated 9th Jaistha 1332 B.S. by which one Hamid Ali, gave him two annas share of the tank and its banks. The plaintiff's claim for possession of the tank and its banks was resisted by defendant 1 in the suit, on the ground that the gift was invalid under the Mahomedan law. It was contended that the deed of gift in favour of the plaintiff was void inasmuch under the Mahomedan law, an undivided share of a property that is capable of partition cannot be the subject of a valid gift. There is no question, and it was conceded that the doctrine of Musha has no application to the tank proper, which is incapable of partition. The question of validity of the gift in plaintiff's favour so far as the undivided share of the banks of the tank were concerned was raised before the Courts below, and was urged in support of the appeal to this Court. It was held by the Courts below that in view of the fact that the plaintiff was put in actual possession of the property covered by the deed of gift, the gift in favour of the plaintiff was valid.
2. In our judgment the decision arrived at by the Courts below, in favour of the plaintiff in this suit, negativing the contention of the contesting defendant the appellant in this Court, is right and must be upheld on two grounds.
I. The gift of an undivided share in anything which is of such a nature that it can be used to better advantage in an undivided condition, is valid, under the Mahomedan law. The watery portion of the tank does not admit of partition, and an undivided share of the same may be the subject-matter of a valid gift; the undivided share of the banks of the tank also, which by its very nature can be used to better advantage in an undivided condition must be held to be valid. In laying down exceptions to the rule of Musha the Hedya (483) states:
It is otherwise with respect to articles of an indivisible nature, because in those a complete seisin is altogether impracticable, and hence an incomplete seisin must necessarily suffice, since this is all that the article admits of; and also because in this instance the donor does not incur the inconvenience of a division.
3. The undivided share of the banks of a tank in our judgment falls within the category of things contemplated by the exception mentioned above.
II. A gift of a share in property, the donee being admitted to possession with the donor and recognised as a person in possession, is valid under the Mahomedan law. This possession has been recognised by a large number of decisions of the High Courts in this country, of which the decision of this Court in Abdul Aziz v. Fateh Mahomed (1911) 38 Cal 518 is typical. It may be mentioned that in affirming the decisions of the Courts below we fully recognize and give effect to the principle enunciated by the Judicial Committee of the Privy Council that the doctrine relating to the invalidity of gifts of Musha ought to be confined within the strict rules. As indicated above, the case before us is one which clearly falls within the exceptions to the rules of Mahomedan law relating to the invalidity of gifts of undivided property. The appeal by the defendants questioning the validity of the gift which is the basis of the title on which the claim of the plaintiff-respondent in this appeal was founded, has rightly been disallowed by the Courts below. The appeal fails and it is dismissed with costs.
4. S.A. No. 74 of 1932.-This is an appeal by defendant 1 in a suit in which the plaintiff wanted to have it declared that a kabuliyat dated 22nd Falgun 1332 B.S. was fraudulent and collusive; and inoperative as such. The claim of the plaintiff in the suit was resisted on the ground that the suit was not maintainable in view of what happened in a previous litigation. It appears that a previous Suit No. 683 of 1926, was allowed to be withdrawn by the plaintiff, with liberty to bring a fresh suit, 'if not otherwise barred.' That suit was also for a declaration that the kabuliyat now in suit was fraudulent, and for its cancellation. According to the contesting defendants the whole suit had abated owing to the non-substitution of heirs of one of the necessary parties, before leave was granted to the plaintiff to withdraw the suit, and it was open to the defendants therefore to raise the question of the maintainability of the present suit. In our judgment, the position taken up by the defendants cannot be held to be sound, for the reason that it was not open to the defendants to go behind the order of the Court, giving leave to the plaintiff to withdraw Suit No. 683 of 1926 mentioned above.
5. The Court below has rightly held that the Court trying the present suit was incompetent to inquire if the order granting permission to withdraw had been properly made. The suit as instituted by the plaintiff was maintainable; and on the conclusion, on evidence, arrived at by the Court of appeal below, the kabuliyat in suit has been rightly declared void and inoperative against the plaintiff. The decision of the Court below is affirmed. There is no order as to costs in this appeal.