P L D 1952 Lahore 545 (PLP)

CORNELIUS. J.‑This is a second appeal brought by the plaintiff Mst. Natho whose suit for possession of 7/64ths share in a house situated at Lahore against her niece Mst. Hadayat Begum and others was dismissed by the trial Court an appeal to the Senior Sub‑Judge of Lahore also being dismissed. The house formed part of the estate of Fazal Din, father of Mst. Natho and grand‑father of Mst. Hadayat Begum, whose mother Mst. Bakhtawar Begum was a sister of Mst. Natho. There were two other sisters, and each of the four inherited a 7/32 share in the house, the remaining 1/8th going to Fazal Din's widow Mst. Allah Rakhi. Mst. Bakhtawar Begum died in 1941 and on the 9th July, 1943, Mst. Natho sued Mst. Hadayat Begum and the other defendants for possession of half of Mst. Bakhtawar Begum's share by partition. It was stated in the plaint that Mst. Hadayat Begum had on the 26th May, 1943, sold the entire share in the house left by her mother to Muhammad Amin defendant and two others and it was contended that this sale was not valid as against the interests of the plaintiff. The suit was defended by Mst. Hadayat Begum on the plea that her mother had gifted the property to her by a registered deed dated 7th December, 1938, and had given possession to her. This plea was accepted by the trial Court, as well as in appeal by the learned Senior Subordinate Judge and the sole question arises for decision in this appeal is whether the gift in question was complete within the meaning of the provisions of Muhammadan Law on the subject. Learned counsel for the appellant Mst. Natho has refer red to Chapter 11 in Mulla's Principles of Muhammadan `Law, 12th edition and in particular to Articles 12513, 126 and

134. The conditions of a valid gift in Muhammadan Law ‑are that there should be a declaration of gift by the donor, an acceptance whether express or implied by the donee and delivery of possession of the subject of the gift by the donor to the donee. The possession may be such possession as the subject of the gift is susceptible of. In suitable cases, construc tive possession may suffice to meet the legal requirements. In the present case, delivery of possession to the donee is recited in the deed itself. It seems to me difficult to avoid the con clusion that in the circumstances existing at the time, the daughter being then permanently resident with the mother, it was entirely unnecessary for the mother to depart from the gifted premises in order to secure the possession of the daughter, but, on the other hand, it was quite sufficient that it should be agreed between them that whereas previously the mother was the owner of the premises and the daughter was living with her, after the deed, the daughter was the owner and the mother was living with her. Learned counsel then referred to the doctrine of mushaa ; i.e., that where property is not capable of partition a gift may validly be made of an undivided share in it, but where the property is capable of division, a gift of an undivided share therein is irregular, though not void. A gift of the latter kind may be perfected and rendered valid by subsequent partition and delivery to the donee of the share given to him. To this proposition, exceptions are cited by the learned author, on pages 1313 and 139 of the book mentioned above and of these only the third need be mentioned, viz., that a gift of a share in free‑hold property in a large commercial town is valid from the moment of the gift even if the share be not divided off and delivered to the donee. This exception rests on the dictum of the Privy Council in the case Ibrahim Ghulam Arif v. Saiboo I L R (1908) 35 Cal.

1. It is not quite clear that this case if governed by the doctrine of mushaa. If the case were that Mst. Bakhtawar Begum was owner of the entire house, and the gift extended only to a share therein, it might with reason have been contended that the gift was irregular and did not become valid until such share was partitioned off and possession delivered thereof to the donee. Similarly, if Mst. Bakhtawar Begum, being only a part owner in the house had made a gift of a portion of her share the same argument might have been raised successfully. The case, however, is different in so far as Mst. Bakhtawar Begum gifted the whole of her share in the house and the evidence shows that she resided in the house at the time and after her death her daughter continued to reside in the same portion of the house. There is proof on the record that there was criminal litigation between Mst. Natho and Mst. Bakhtawar Begum, which tends to support the belief that a separate part of the house had been allotted for residence to Mst. Bakhtawar Begum. It could hardly be that the sisters were, in those circumstances, occupying and using every room of the house indifferently and equally. In fact Mst. Hadayat Begum in her statement clearly said that her mother was in possession of the 7/32nd portion of the house which was hers, and it was this portion which was gifted to her and, which she exclusively occupied after Mst. Bakhtawar Begum's death and subsequently sold. Although the matter was not elucidated in evidence, this statement by Mst. Hadayat Begum, which is not controverted on the record, leads me to conclude that, by agreement among the co‑sharers, a portion roughly equivalent to Mst. Bakhta war Begum's share in the house had been marked off and allotted to her for separate occupation. It was this portion of which she delivered possession to Mst. Hadayat Begum and in the circumstances, it seems to me that the difficulties arising from the application of the doctrine of mushaa do not affect the present case at all. Delivery of possession did not require to be postponed until after partition. Mst. Bakhtawar Begum was already in possession of a portion of the house which roughly represented her actual share in it, and it was this portion which was gifted, possession being delivered at the same time. If, however, the doctrine of mushaa be held to apply since the house is in Lahore, a large commercial town, the exception mentioned above would appear to cover the case. The suit appears to me to have been rightly dismissed, and I accordingly dismiss this appeal. As the opposite parties are not represented, I make no order as to costs. K. M. A. Appeal dismissed.