1. The only question in this appeal relates to the validity of a hebanama which is alleged to have been executed by one Sanjia in favour of his daughter Jharimai Bibi. The trial Court found that though there are some circumstances throwing an amount of suspicion on the transaction on the ground that the donor was not a person of sound or sufficiently strong mind and was also unduly influenced, those circumstances are not enough to pronounce against its validity. It held however that it had not been proved that there was any delivery of possession accompanying the gift, and on that ground it held that the alleged heba was invalid. The District Judge agreed with the trial Court so far as the first of the two findings aforesaid, but as regards the second finding he differed from the trial Court observing as follows:
Having regard to the fact that even after the hebanama Sanjia was living with his daughter, and that his act and management, which are admitted, can be construed, in my opinion, as acts done on behalf of the daughter to whom the legal title had, it is alleged been transferred, I do not agree with the learned Munsif that the hebanama was ineffective for want of delivery of possession.
2. It has been argued on behalf of the appellants that as under the Mahomedan law no gift is valid unless accompanied by delivery of possession. The above observations of the learned District Judge are not sufficient to sustain the validity of the gift in the present case The broad proposition that equity of redemption cannot be the subject of a valid gift under the Mahomedan law, when the property is in possession of a mortgagee, can no longer be maintained: see Tara Prasanna Sen v. Shandi Bibi AIR 1922 Cal 422. And so it has not been and cannot be argued that because the property in the present case was under a usufructuary mortgage it could not be the subject of a valid mortgage. Intention has in the first place to be inquired into. Of this there can hardly be any room for doubt; a document with requisite formalities was executed, and it was duly registered on the donor's admission, and there is nothing very much to show that there was a motive for a benami, while on the other hand there are enough materials indicating that a real transaction was meant.
3. The donor had been badly treated by his wife who had gone to jail in consequence of such treatment, the donee was his daughter, a widow, who had nursed and looked after him and he was living with her and at her house. As regards possession, delivery thereof should have accompanied the gift, though a gift invalid for want of delivery of possession at the time may be validated by obtaining possession subsequent to the gift. The question has to be decided upon the peculiar facts of each individual case because by possession in connexion with Mahomedan law is meant such possession as the nature of the subject of the gift is capable of. Here the land was in the possession of a usufructuary mortgagee and so no delivery of actual physical possession could be made; the subject matter was a half-share, though demarcated, of certain plots forming one holding or more, and so mutation of the donee's name in the landlord's sherista was not possible. The evidence of the donor and the donee having divided the produce subsequent to the gift has not been believed. But the donor was living with the donee, and on such evidence as there is it is not altogether unreasonable to hold, as the District Judge has held, that the donor was managing the property on behalf of the donee. On the whole I am not prepared to disagree with the view which the District Judge has taken. The appeal is dismissed with costs.