1. This appeal arises out of a suit for the recovery of the disputed land on establishment of the plaintiff's title thereto. The facts of the case as found by the Courts below are that the lands in suit belonged to one Asrabi Bibi, She made a gift of a portion of them to one Gendu by a registered instrument and a verbal gift of the rest to defendant No. 1 and 'caused the same to be recorded in her (defendant No. 1's) name.' At the time of the settlement, they were so recorded. It appears that before Asrabi made a gift of the lands in dispute to Gendu and defendant No. 1, she had mortgaged them to some persons who were in possession of the lands at the time of the verbal gift to defendant No. 1.
2. The validity of the gift to Gendu was conceded by the plaintiff in the Court below and is not questioned before us, The plaintiff, however, contends that the oral gift to defendant No. 1 is invalid according to Muhammadan Law, inasmuch as the lands were in the possession of the mortgagees at the time of the gift and so there was, and could be, no delivery of possession as is required by law to constitute a valid gift.
3. The findings, as we have indicated, are that the donor caused the name of the donee to be recorded as tenant in respect of the disputed jote and that the donee, the defendant No.), was in physical possession of the homestead, one of the properties included in the gift. The Court of Appeal below has further held that Asrabi Bibi was in constructive possession of the lands and is of opinion, though not expressed in explicit terms, that Asrabi did all she could to put defendant No. 1 in possession of the mortgaged lands. The said Court concludes its finding by observing: 'It appears that there was clear intention on her (Asrabi's) part to make the gift and that she gave up the property to defendant No. l; so the gift is valid.'
4. These findings would ordinarily have been sufficient to dispose of the appeal, but the learned Vakil for the appellant argues as an abstract proposition of law that a property in the possession of a mortgagee, and not in the actual possession of the donor, is not capable of being the subject of a gift, in other words, the gift of such a property is bad according to Muhammadan Law. This contention is based mainly on the authority of the Bombay cases Mohinuddin v. Manchershah 6 B. 650 : 7 Ind. Jur. 91 : 3 Ind. Dec. (N.S.) 888 and Ismail v. Ramji Sambhaji 23 B. 682 : 1 Bom. L.R. 177 : 12 Ind. Dec. (N.S.) 456. The facts of the first case were these:--In 1871 the property in suit was mortgaged to Manchershah, who was in possession of it as a mortgagee in possession, After the mortgage one Nur Bibi brought a suit against the mortgagors for partition and obtained a decree, in execution of which certain lands were measured and marked out with pegs, as the lands which fell to Nur Bibi's share. To this suit Manchershah, the mortgagee in possession, was not made a party and so he protested against the marking of the land. Nur Bibi, however, took no steps to eject him or to get rid of his lien on the lands in his possession.' In 1877 Nur Bibi made a gift of the lands to the appellant Mohin uddin. On the mortgagee obtaining a decree against his mortgagors and proceeding to attach the land, Mohin-ud-din, the alleged donee, after failing to raise the attachment, brought a suit to establish his right of proprietorship in the land on the basis of the gift. It would thus appear that at the time of the gift the subject of the gift was in the possession of a third person claiming adversely to the donor. On these facts the learned Judges find that the gift was bad, but seem to have based their decision on the ground that the owner of property which is in the possession of a mortgagee cannot make a gift of it,' and further: 'it follows as a necessary consequence that (where the mortgagee has been in possession) the mortgagor was not in possession, and could not, therefore, under the Muhammadan Law pass it by way of gift.' The decision is perfectly justifiable on the facts of the case and according to the accepted view of the law on the point, viz., that the gift of a property not in the possession of the donor but in the hands of a trespasser is not good in law. This follows from the proposition of law that delivery of possession must accompany the gift but where the donor is dipossessed by a wrong doer and is not in possession of the property in any manner, actual or constructive, he cannot deliver what he himself has not. The point which the learned Judges appear to have decided in the case, therefore, does not arise from the facts of that case. With reference to this case, Mahmood, J., observes in Rahim Bakhsh v. Muhammad Hasan 11 A. 1 at p. 10 : A.W.N. (1888) 266 : 13 Ind. Jur. 152 : 6 Ind. Dec. (N.S.) 429 that 'it probably carries the Rule as to seisin too far,' With reference to this case and the next case cited below Mr. Ameer Ali, in his book on Muhammadan Law, Volume I, 4th Edition, at page 66 observes that in these two cases the Bombay High Court has misconceived the Muhammadan Law, and at page 69 the learned author, after citing the case under review, remarks:--'This view, it is respect-fully submitted, is founded upon an erroneous apprehension of the Hanafi Law under which seisin is requisite for hypothecation. According to the correct view of the Hanafi doctrine on the subject there is nothing in it to preclude the mortgagor from granting his equity of redemption to another. And, as the property forms the security for the debt, the transferee obtains the right to redeem the property, subject to the payment of the debt.'
5. In the second case mentioned above there were two points that called for decision: (1) whether the gift of the mortgaged property was valid, inasmuch as the donor was not able to deliver actual physical possession of the subject of the gift to the donee; (2) whether the gift was subsequently revoked by the donor, As the Court held on the second point that the gift was validly revoked, it was not necessary to enter a finding on the first question. In a short judgment, however. Candy, J., relying on the case of Mohin-ud-din discussed above (1) and two other cases of the Bombay High Court, lays down the broad proposition that where the donor does not deliver physical or constructive possession of the 'gifted' property, the gift is invalid in Muhammadan Law. the learned Judge does not explain what he means by constructive possession, but it seams he confines it to possession through a lessee or a tenant. Reference has been made by the learned Judge to the case of Shaik Ibrahim v. Shaik Suleman 9 B. 146 : 5 Ind. Dec. (N.S.) 98, where West, J., held that delivery of land in the possession of a tenant can be made by asking the tenant to attorn to the donee and that delivery of a part is delivery of the whole. The other case relied upon by Candy, J., is the case of Meherali v. Tajudin 13 B. 156 at p. 159 : 7 Ind. Dec. (N.S.) 105, were the property, the subject of the gift, was never in possession of the donor, nor where donees ever put in possession of it. The law laid down by the last two cases is not disputable, but they hardly support the view of law taken by the learned Judge on the facts of the case before him.
6. For the respondent reference was made to the case of Anwari Begam v. Nizam-ud-din Shah 21 A. 165 : A.W.N. (1899) 8 : 9 Ind. Dec. (N.S.) 815, where Blair and Aikman, JJ., held that the gift of the property attached by the Collector for arrears of revenue and taken possession of by him under a local law was valid. The learned Judges lay down the correct view of the law in the following terms:
7. There is no doubt that the principle of Muhammadan Law is that possession is necessary to make a good gift, but the question is, possession of what? If a donor does not transfer to the donee, so far as he can, all the possession which be can transfer, the gift is not a good one. As we have said above, there is, in our judgment, nothing in the Muhammadan Law to prevent the gift of a right to property. The donor must, so far as it is possible for him, transfer to the donee that which he gives, namely, such rights as he himself has; but this does not imply that where a right to property forms the subject of a gift the gift will be invalid unless the donor transfers what he himself does not possess, namely, the corpus of the properly. He must evidence the reality of the gift by divesting himself, so far as he can, of the whole of what he gives.' On principle, there is hardly any difference between this case and the case before us.
8. The case of Mullick Abdool Guffoor v. Muleka 10 C. 1112 : 5 Ind. Dec. (N.S.) 743 supports the same Rule of law. In that case validity of a gift of malikana right, t.e, the right to receive an annual allowance was called in question. Garth, C.J., discusses the law on the subject fully and comes to the conclusion that gift of the property in the actual possession of a tenant or lessee may be valid if the donor does all he can to put the donee in his place as regards possession, which must in such circumstances be constructive. If possession through a tenant may be constructive possession capable of being delivered so as to validate a gift of such property, as appears to have been conceded by Candy, J., in the case reported as Ismeil v. Ramji Sambhaji 23 B. 682 : 1 Bom. L.R. 177 : 12 Ind. Dec. (N.S.) 456, we do not see any reason why property in the possession of the mortgagee should not likewise be considered to be in the cons tractive possession of the mortgagor, as in both cases some kind of right to property is left in the owner.
9. Although the Muhammadan lawyers when they speak of 'seisin' in connection with the law of gift mean 'completed seisin' or direst possession, the Judical Committee in examining the texts have refused to accept this interpretation as too narrow and almost unintelligible. Mahomed Buksh v. Hosseini Bibi 15 C. 684 at p. 702 (P.C.) : 15 I.A. 81 : 12 Ind. Jur. 291 : 5 Sar. P.C.J. 175 : 7 Ind. Dec. (N.S.) 1040. The law as it stands now is lucidly discussed by Abdur Rahim, J., in Fakir Nynar Muhamed Routher v. Kandasawmy Kulathu Vandan 14 Ind. Cas. 993 : 35 M. 120 at p. 130 and we consider it settled by authoritative judicial pronouncement that by possession in connection with the law of gift is meant such possession as the nature of the subject of the gift is capable of; Chaudhri Mehdi Hasan v. Muhammad Hasan 33 I.A. 68 : 10 C.W.N. 706 : 3 A.L.J. 405 : 8 Bom. L.R. 387 : 28 A. 439 : 9 O.C. 196 : 4 C.L.J. 295 : 1 M.L.T. 163 (P.C.).
10. It is not necessary for our present purposes to go so far, but it is contended by a Muhammadan lawyer of high authority (Ameer Ali, Muhammadan Law, Volume I, Fourth Edition, page 69) that 'there seams to be no sufficient ground for holding that where a property to which a person is rightfully entitled happens to be in the hands of another claiming adversely to him, the rightful owner may not make a gift of the same to a third person', provided, it is premised, he puts the donee in a position to recover the property. This proposition appears to be deductible from the observations of the Judicial Committee in the case of Mahomed Buksh v. Hosseini Bibi 15 C. 684 at p. 702 (P.C.) : 15 I.A. 81 : 12 Ind. Jur. 291 : 5 Sar. P.C.J. 175 : 7 Ind. Dec. (N.S.) 1040 referred to above.
11. Now the essentials of a valid gift, according to Muhammadan Law, are aqd (tender and acceptance or declaration and assent) and milk (seisin). The former indicates that gift is, according to Muhammadan jurists, a branch of the law of contract. With regard to milk or seisin, the jurists, though insisting on a qaibzi kamil or complete seisin, have made certain allowances in cases in which the donor's right to the subject-matter of the gift is defective, as not extending to the entirety of the property. The following passages illustrate the conception of possession which regulates the doctrine of seisin in the law of gift:
* * * * * * *
The gift of Shaghil (that which disengages or obstructs or limits the right of the donor) is valid and the gift of Mashghul (that which is engaged or mixed up with the right of the donor) is not valid; and the Rule in this kind of legal questions is that the mixing up of the subject of the gift with the right of the donor will prevent the completion of the gift, because in gift, possession is a condition. But if the right of the donor is mixed up with the subject of the gift, it does not prevent the completion of the gift; as, for example, if the donor makes a gift of a sack which contains food belonging to the donor, the gift will not be valid; and if he makes a gift of the food which is in the sack, it will be valid, and such will be the decision in other like illustrations'--Fatawai Alamgiri, Volume IV, Book on Gifts, Calcutta Edition, page 529.
* * * * * * *And gift becomes perfected by complete seisin, even though the subject of the gift is Shaghil or obstructs the right of the donor therein, but is not obstructed by the right of the donor, according to the saying of the Prophet (peace be on him) 'gift is not valid but when it is possessed.' The author of the Manh says that the gift of Shaghil is valid and the gift of the Mashghul is not valid. And the Rule in this kind of question is that the mixing up of the subject of the gift with the right of the donor prevents the perfection of the gift, for example, the gift of the sack in which there is food is not valid, but the gift of the food in the sack is valid; and the meaning of complete seisin in the case of the moveable is what is proper for it, and in the case of the immoveable is what is proper for it, thus the taking of the key of a house of which gift is made is (taking) the possession of it'--Majmaul Anhar, Commentary on Multaqual Abhur, Volume II, Book of Gift, Egypt Edition, page 353.
* * * * * * *And gift is perfected by complete seisin, even if the subject of the gift is Shaghil to the right of the donor but not Mashghul by it, the rule is that if the subject of the gift is Mashghul by the right of the donor, it prevents the completion of the gift, but if it is Shaghil, then it is not; thus if a sack is given in which there is food of the donor or a house in which there is his furniture or a beast on which is his saddle, and he delivers them as such (in that condition), the gift is not valid, but the reverse of it is valid in the case of the food, the furniture and the saddle only, because they are Shaghil to the right of the donor, but not Mashghul with it, for the Shaghl or mixing up with the right of one other than the donor does not prevent the perfection of the gift'--Durrul Mukhtar, Part IV, Book on Gift, Egypt Edition, page 567.
12. The gloss of Ghaitul Awtar, a well-known commentary of the above, amplifies the sense of the last sentence by adding that the gift of a vessel without its contents is not valid, but that of the contents is valid, because the former is Mashghul and the latter is Shaghil and the condition that the subject of the gift should not be Mashghul or mixed up with the right of the donor is attached (to the validity of the gift) for the reason that if the subject of the gift is Mashghul or mixed up with the right of a person other than the donor, it does not prevent the perfection of the gift.
13. In order to properly appreciate the juridical idea of gift as conceived by Muhammadan jurists, it is to be borne in mind that gift in considered a class of contracts, but as it is a voluntary contract without consideration, it is not enforceable, unless accompanied by possession, in which case the devolution or transfer of the right to the property becomes complete. Take the first illustration given in the above texts. It is assumed that the sack and the food both belong to the donor. He makes a gift of the food, but not of the sack; the gift article is thus Mashghul or engaged or mixed up with another article of which the owner-ship remains with the donor. The gift is valid, as possession of the subject of the gift can be made over, apart from the thing in which it is held, as the donor has parted with all his interest in the subject of the gift. If, on the other hand, the gift is made of the sack only, he has not parted with all bis interest, because it is Shaghil or contains something which still belongs to him. It thus appears plausible, as is apparent from the last passage above quoted, that if the food belonged to a third person, the gift of the sack only would be valid, according to law.
14. The insistence of the delivery of actual or direct possession in every ease of gift loses sight of the distinction between possession and possessory right. Muhammadan text-writers deal chiefly with the former, on the ground that the donor must divest himself of all rights he has in the subject of the gift, including whatever possession is in him.
15. In British Courts the Muhammadan Law of gift is administered as between Muhammadans on the ground of equity and good conscience. The Judicial Committee have laid down that the doctrine relating to the invalidity of gifts, according to a too literal interpretation of the Muhammadan Law, is unadapted to a progressive state of society and will be confined within the strictest limits. With reference to the doctrine of Mushaa, their Lordships observe that the doctrine in its origin applied to very different subjects of property; Muhammad Mumtaz Ahmad v. Zubaida Jan 11 A. 460 at p. 475 (P.C.) : 16 I.A. 205 : 5 Sar. P.C.J. 433 : 6 Ind. Dec. (N.S.) 721; Ibrahim Goolam Ariff v. Saiboo 35 C. 1 : 9 Bom. L.R. 872 : 4 A.L.J. 572 : 11 C.W.N. 973 : 6 C.L.J. 695 : 17 M.L.J. 408, 34 I.A. 167 : 2 M.L.T. 479, 4 L.B.R. 154 (P.C.), see also Ebrahimbhai v. Fulbai 26 B. 577 : 4 Bom. L.R. 180. Even though our reading of the Muhammadan Law be not in strict accord with the texts of the Muhammadan Jurists, we are of opinion that the right of the equity of redemption, which is under consideration in this case, and such similar rights which are termed in some of the decided eases as incorporeal rights, as distinguished from the corpus, may, in view of the exigencies and necessities of modern conditions and conceptions of legal rights of property, be subjects of a valid gift, the mode of delivery of possession varying according to the nature of the right conveyed.
16. The learned Subordinate Judge observes in his judgment:--'There is no evidence, properly speaking, to prove the delivery of possession, but defendant No. 1 has been in possession of the subject of gift, and has exercised acts of ownership by taking settlement from the landlord and payment of rent.' He finds later in his judgment that there was clear intention on the part of the donor to make the gift and that she gave up the property to defendant No. 1. Taking these findings as they stand, the law as laid down by their Lordships of the Privy Council in the ease of Mahomed Buksh v. Hosseini Bibi 15 C. 684 at p. 702 (P.C.) : 15 I.A. 81 : 12 Ind. Jur. 291 : 5 Sar. P.C.J. 175 : 7 Ind. Dec. (N.S.) 1040 is applicable in the present case and the gift is validated by the defendant No. 1 obtaining possession of the properties in suit, though subsequent to the gift. We are, therefore, of opinion that the gift of the lands in suit is valid in law and the plaintiff's suit in respect of them must be dismissed.
17. The appeal accordingly fails and is dismissed with costs.