1. This was a suit by three sisters belonging to a Mahomedan family for recovery of joint possession of a certain homestead along with another sister, defendant 1, on declaration of their title. Their case was that the property had devolved on all of them equally by inheritance from their mother. The suit was contested mainly by defendant 1, who alleged that she had got the property exclusively from her mother by way of a gift. The first Court gave effect to the plea of defendant 1, and dismissed the suit, but the judgment was reversed on appeal.
2. The main question is whether the alleged gift of the homestead to defendant 1 by her mother can be supported. The learned Judge in the Court of appeal below holds that it is hit by Section 26C, Ben Ten. Act, which lays down that every transfer of an occupancy holding shall be made by a registered instrument, except in certain cases therein mentioned with which we are not concerned in this appeal. It is not disputed that the property here was an occupancy holding, subject, therefore, to the provisions of Section 26C, and that there was no registered instrument of transfer. The learned advocate for the appellants seeks to avoid the effect of this section on the authority in Nasib Ali v. Wajed Ali : AIR1927Cal197 , and argues that this positive enactment notwithstanding, the question should be decided in accordance with the Mahomedan law of gifts. I do not think that the ruling cited is sufficient authority for such a view. The grounds of the decision in that case are distinguishable. It turned on the words in the relevant sections of the Transfer of Property Act and of the Registration Act. Whether or not, on the language used in those enactments, that decision can be supported is another matter, but it is perfectly clear that Section 26 C, Ben. Ten. Act, is in very much wider terms, and I do not think that it is possible to limit its operation by taking away any particular class of transfers outside the scope of its mischief. The words 'every transfer' are quite general, and must be held to include a transfer by a Mahomedan, so that the result will be that in the case of such a transfer, it must not only comply with the rules of Mahomedan law, but also satisfy the requirements embodied in this statutory provision.
3. In my opinion, therefore, the learned Judge was quite right in holding that no title passed to defendant 1 by the alleged gift to her by her mother. If the gift fails, there can be no doubt that upon the death of the mother the property passed to all the four sisters in equal shares, and there is no reason, therefore, why the plaintiffs should not get a decree for joint possession with the other sister. It was urged on behalf of the appellants that one of the plaintiffs had leased out a portion of the homestead to a stranger, and that this disentitled them to a decree for joint possession. But the decree is not for joint possession with the stranger lessee at all: he was a party defendant to the suit, but did not appear in the proceedings in any Court. The decree is for joint possession along with defendant 1 only, and it is quite a proper decree to make in the circumstances of the case. The appeal accordingly fails and is dismissed with costs.