1. This appeal arises out of a suit by one Danoo Gazi for joint khas possession of certain rayati lands which belonged to one Sajwal Darji and which the plaintiff claimed as one of Sajwal's heirs. Sajwal died leaving a widow and three grandsons--sons of his daughter. The contest in this case is between the plaintiff and the defendants Nos. 3 and 4 who are two of those grandsons. The third grandson Afizuddi is dead and his representatives are also on the record. Some 6 or 7 years before his death, Sajwal executed two deeds of gift, one in favour of his wife of a four anna share of certain of his properties including the homestead and the other in favour of his 3 grandsons of a quantity of 11 kanis 1 ganda 1 krant of land situated within certain boundaries and bearing a yearly rental of Rs. 19-4-0. The only question in this appeal is whether the deed of gift in favour of the grandsons is valid as against the plaintiff who is one of the heirs of Sajwal. As to the deed of gift in favour of the wife of Sajwal, it may at once be stated that she, in a suit which was brought by her to recover her share under the gift, admitted that she had never had possession of the land and her suit was, accordingly, dismissed. She, therefore, only got the share in her husband's estate to which she would be entitled by inheritance as his widow, namely a one-eighth share.
2. With regard to the deed of gift in favour of the three grandsons, two points have been urged before us, first, that there was no such possession as would be sufficient under the Muhammadan Law to complete the gift in their favour, and, secondly, that the gift was contrary to the doctrine of Mushaa. On the second point, we need only refer to the case of Muhammad Mumtaz Ahmad v. Zubaida Jan 11 A. 460 at p. 474 : 16 I.A. 195 their Lordships of the Privy Council stated the authorities referred to show that possession taken under an invalid gift of Mushaa transfers the property according to the doctrines of both the Shia and Sunni Schools.' They further added that the doctrine relating to the invalidity of gifts of Mushaa is wholly unadapted to a progressive state of society and ought to be confined within the strict rules.' So far as the present case is concerned, it is sufficient to say that, if the question of possession is found in favour of the defendants Nos. 3 and 4, the gift, even assuming it to be invalid as being contrary to the doctrine of Mushaa would be valid by reason of that possession. So far as the question of possession goes, both the Court of first instance and the lower appellate Court have come to a distinct finding that possession was given to the donees. It appears that the grandsons came to reside with Sajwal before the date of the gift; that at any rate from the date of that gift, they assumed possession of the property and took over the cultivation of the land. The donor, it is true, remained in his old age in the house and lived with his grandsons until he died. It is also true that no mutation of names was made until his death and that the rents which appear to have been paid by the grandsons were paid in his name. The question now is whether those facts are sufficient to negative the finding of possession in favour of the donees. The case of Shaik Ibhrahim v. Shaik Suleman 9 B. 146 is an authority for saying that for the purpose of completing a gift of immovable property by delivery and possession no formal entry or actual physical departure is necessary. It is sufficient if both donor and donee are present, and an unequivocal intention to transfer has been manifested. This case was followed by the Allahabad High Court in Humera Bibi v. Najmunnissa Bibi 28 A. 147 where it was held that in all cases of gift of immovable property it is not necessary that the donee should actually and physically vacate the property, the subject of the gift. We think that those cases are sufficient authority for holding in this case that, though Sajwal did not actually vacate the homestead where he resided, still there might be and the lower Courts have held that there was a delivery of possession to the donees, the grandsons, under the deed of gift. The case in this respect differs from the precedent which the learned pleader for the appellant cited from Macnaghten's principles and precedents of Mahomedan Law p. 231 case XXII. There it was simply stated that the donor did not relinquish the possession and that the donor and the donee continued jointly seized of the property given. But, here, there is a finding and that of fact by both the lower Courts, that, although he continued to reside in the house and although there was no mutation of names, Sajwal did give up possession to his grandsons. That there was a clear intention on his part to make the gift and to give up the property to his grandsons has been found by the lower Courts and there can be very little doubt as to that intention. We think, therefore, that the appeal fails and must be dismissed with costs.