P L D 1963 (W (PLP)

JAMIL HUSSAIN RIZVI, J.‑This regular second appeal was heard by my learned brother S. A. Mahmood, J., who by his order dated the 21st of June, 1962, referred the case to my Lord the Chief Justice for being entrusted to a larger Bench preferably to a Full Bench. It has, therefore, come up before us. It has been remarked in para. 16 of the judgment of reference as follows:- "In view of what has been stated above, it is obvious that there is divergence between the Shariat and the decided cases. The question of law involved is of considerable importance and needs to be authoritatively decided. I, therefore, suggest that this case be referred to a larger Bench preferably a Full Bench, to go into the question of Mushaa under the Shariat, so far as it affects the validity of gifts of undivided property."

2. The relevant facts are as follows. Major Saif Khan owned 139 kanals of land in Sadiqgarh Palace in Dera Nawab. He gifted orally to Muhammad Shah and Ahmad Shah 48 kanals of land entered in Khata No. 67 and one‑fourth share in a well in Khata No. 26, along with the share in the Shamilat. Mutation No. 16 entered on the 19th of March 1937, was sanctioned on the 25th of April 1937 Major Saif Khan died in the year 1944 and his sons Muhammad Ibrahim and Ata Muhammad appellants brought a suit on the 5th of November, 1944 for possession of the gifted land against Muhammad Shah and Ahmad Shah. The basis of the suit was that the gift was invalid and the possession of the donees on the land was illegal. The respondents contested the suit and the trial Court framed the following issues :‑ (1) Does the gift of the land in dispute amount to mushaa and, therefore, invalid under Sharaa ? (2) Was the registration of the alleged gift dated 28‑3‑1937 compulsory under section 17 of the Registration Act and the document was not registered ? (3) Was the mutation attested on 24‑3‑1937 invalid under Sharaa and law and, therefore, ineffective on the plaintiff's rights of inheritance ? (4) Are the defendants in adverse possession of the land in dispute for more than 12 years ? (5) Are the defendants not governed by Sharaa and, therefore, not entitled to the decree prayed for ? (6) Had the plaintiff's father disinherited them and, therefore, they are not entitled under Sharaa to the property left by him ? (7) Is the suit by the donor's heirs for the return of the property gifted not maintainable after his death and, therefore, the present suit is liable to dismissal ? (8) Is the land in suit a specified share of the Zamindari and its gift is valid according to Sharaa and is not covered by the definition of mushaa ?

9. To what relief are the plaintiffs entitled ? The suit was decreed by the trial Court, which decided issue No. 2 in favour of the defendants, while all the issues were decided in favour of the plaintiffs. The learned District Judge, Rahimyarkhan accepted the appeal on two grounds. Firstly, that the doctrine of mushaa did not apply to the case facts of this case as the land gifted by the plaintiff's father was an undivided share in a joint Khata, and it was well established that such a share could be validly gifted under Muhammadan Law, it being a definite share which could be got partitioned at the instance of the donees. The learned District Judge relied on Nazir Din and others v. Muhammad Shah and others (A I R 1936 Lah. 92) which was followed in Safiullah v. Abdul Jabbar (P L D 1955 Lah. 199). The learned District Judge also came to the conclusion that the gift made by Major Saif Khan which had been completed during his lifetime become irrevocable on his death as stated in paragragh 426 of the Tayabji's Muhammadan Law, III Edition. This would amount to upsetting the findings of the trial Judge on issues 1, 7 and 8.

3. The learned counsel for the appellants contended that according to the principle of mushaa, as envisaged by Muslim Law, the gift was invalid as it was of an unspecified area out of a joint Khata of which the possession had not been given to the donee. The authorities that were relied by the learned District Judge and also by the learned counsel for the respondents before us are attacked by the learned counsel for the appellants on two grounds. That the authorities did not apply to the facts of the present case and secondly that there was a slight departure from the strict Muslim Law in these authorities as those pronounce ments were made under the influence of the Anglo‑Muhammadan Law as prevalent in India during the British regime. , The present case was to be decided according to strict Shariat Law. The authorities cited by the learned District Judge and the learned counsel for the respondents are as follows :‑ I. Nazir Din and others v. Muhammad Shah and others. The learned Judge has remarked in this authority that Muhammadan Law neither contemplated actual delivery of the possession by the donors to his grandsons for the gift to be valid, nor prohibited gifts of one‑half share out of 576 acres of land and three‑fourth share in the house. It has been further remarked that "it is no doubt true that according to strict Hanfi Law, the general proposition as laid down by some of its exponents is to the effect that an undivided part of a thing capable of division cannot be the subject of a gift. But, to my mind, it means something else than what is imported into it by the learned counsel for the appellants. The Muhammadan law of gift has been interpreted on several occasions by their Lordships of the Privy Council as well as by the High Court in India, and the general principal deducible from those authorities is that, in case the donor and the donee are related to each other in the manner in which they are related in the present case, it is unnecessary that the donor should physically part with the possession of the property, and that a mere intention on his part to treat the property as that of the donee and to divest himself of his own ownership, is enough to constitute a valid gift". The learned Judge after considering Muhammad Mumtaz Ahmad v. Zubeida Jan (16 I A 206), Ibrahim Goolam Arif v. Saiboo (34 I A 167), Abdul Aziz v. Fateh Muhammad (38 Cal. 518), Fayyazuddin v. Kutbuddin (10 Lah. 761), Rahmat Ali v. Mst. Daulat Bibi (A I R 1925 Lah. 501), Ma Mi v. Mallander Ammal (I L R 5 Rang. 7) and Muhammad Sadik Ali v. Fakhar Jehan Begum (6 Luck. 556) remarked "it, was manifest from these authorities that the original rigidity of the rule of mushaa has been considerably relaxed in its application to British India and in almost all cases. Which have come up before the Courts, an effort has been made to adopt the rule to its environments and to interpret it so as to make it consistent with the principles of justice, equity and good conscience. The Courts in this country have given effect rather to the spirit of the rule than to its letter and have upheld gifts in all cases in which the intention to give on the part of the donor had been expressed in most unequivocal terms, and had further been attended by all honest efforts on his part to complete the gift by divesting him self of the control over the property in such a manner as would clearly imply his divestiture in the eye of the law of the land. The raisen d'etre of this rule was the avoidance of gifts that were vague, indefinite or incomplete, and the only test that should be applied in such cases is whether the gift in question is open to any of these objections, or in other words, whether the donor has still reserved to himself a loop‑hole of escape or not. If this is not so and if the donor has done all that the law of the land requires to be done to separate himself from the property, a gift of mushaa will be as valid as that of property which can be physically handed over to the donee. Transfer of possession is no doubt the main thing in the whole affair, and in every case this is the only thing to be seen". II. Hamid Ullah v. Ahmad Ullah (A I R 1936 All. 473). The gifted property of undivided share of 7/32 in six houses were parcels of land of which the donor was not in physical possession of the property was capable of division was held to be valid, the gift was by a registered deed and the donor stated that she had given up all her proprietary rights in the gifted property and the donee was at liberty to transfer it in any way he chose. It was remarked that the gift of the undivided share of the property which was capable of partition was invalid but not void, and it could be perfected and rendered valid by subsequent partition and delivery to the donee of the share given by him, and that the gift was valid as the donor had done practically all that she was able to do in the way of divesting herself of possession and giving to the donee the possession which she herself had. III. Ebrahim Alibhai Akuji v. Bai Asi and others (A I R 1934 Bom. 21). This is a case in which the donor, a Muslim, gifted his land to his two daughters and directed the tenants to pay the rent to his daughters, the tenants complied. This was followed by a regular deed of gift. It was held that although the possession had not been given to the two donees after divid ing the property, the gift was valid. It has been remarked that on the question whether a gift under Muslim Law had been completed the more satisfactory method of dealing with the question was to direct attention to the conduct of the donor and the donee after the time when the gift was completed. IV. Bibi Kanij Fatima v. Jai Narain Ram and others (A I R (1944) 31 Pat. 334). The donor was in possession of one anna share in the land as the heir of her deceased husband Muraduddin and also one anna share as the heir of her deceased second husband Muhammad Din, she executed a deed of gift in favour of respondent No.

7. The learned Judge supporting 7 Patna 118 and 15 I A 51 ; 16 I A 205, 35 Cal. 1 P C and 58 Bom. 164, held that a gift of an undivided share in kaimi raivati lands was valid and the doctrine of mushaa was inapplicable to such a case. Abdul Aziz v. Fateh Muhammad Haji (38 Cal. 518), was also relied. It was remarked that a donee of mushaa who had taken joint possession of the subject of gift, and who finds it convenient and practicable to continue to hold that property without partition, should be allowed to do so. All that the law is concerned is that before the validity of such a gift is declared, the donor must have parted with complete possession in favour of the donee, and then it is the look out of the donee as to whether he wants a partition or not. If the donor has partitioned the property and given it to the donee in a definite share, the donee could still hold the property as a tenant in common with his co‑sharers, and no question can be raised regard ing the validity of the gift. Possession of a co‑owner or a co‑tenant is a possession which has to be recognised by the law. V. Jafar Ali Khan and others v. Nasimannessa Bibi (A I R 1937 Cal. 500). It was held that a gift of mushaa of an undivided property is valid, if the property is of a such a nature that its enjoyment in an undivided condition is more profitable and advantageous than its enjoyment after division. The doctrine of mushaa cannot apply to a specific share in landed property, which must be looked upon as a separate property. VI. Zahuran and others v. Abdus Salam and others (A I R 1930 Oudh 71). It was held that a definite share in immovable property consisting of zamindari houses or shops, is a separate estate with separate and defined rents. The rule of mushaa, therefore, which aims at prohibiting confusion between estates gifted and not gifted is wholly inapplicable to such an estate. It was further remarked that if the subject‑matter of gift was only capable of constructive possession and such possession accompanied the gift, the gift must be held to be valid.

4. The learned counsel for the appellants argued that the authorities referred to above were a departure from the strict Muslim Law and consequently these should not be followed. He has relied on Nirman Singh and others v. Thakur Lal Rudra Partab Narain Singh and others (A I R 1926 P C 100), which lays down that it was an error to suppose that proceedings for the mutation of names were judicial proceedings in which title to add proprietary rights in immovable property were determined. These were nothing of the kind and were much more in the nature of fiscal enquiries instituted in the interest of the State for the purposes of ascertaining which of the several claimants' for the occupation of certain denominations of immovable property may be put into occupation of it with greater confidence that the revenue for it will be paid. Orders in mutation proceedings were not evidence that the successful applicant was in possession as sole legal owner in a proprietary sense, to the exclusion, for example, of all claims of the other members of the family as co‑owners or for maintenance or otherwise, as revenue autho rities had no jurisdiction to pronounce upon the validity of such a claim. The learned counsel urged that the entry of the mutation in favour of defendants could neither be treated as evidence of good title nor that of possession. The property in dispute being capable of partition was never partitioned either before or after the gift, consequently, with the application of the principle of mushaa the gift was invalid. As regards the second point on which the learned District Judge decided against the appellants, the learned counsel has contended that the plaintiffs did not base their case on the right of the revocation of the gift but they attacked the legality of the gift under shariat, and if the gift was held to be illegal, the donees will have nor title to the property and consequently they were not entitled to retain the possession of the property in dispute. The second contention of the learned counsel for the appellants is supported by Maqbool Ahmad v. M. Manzoor Ahmad (P L D 1959 B J 3) that the right to sue on the basis of the invalidity of the gift arose to the heirs of the donor after his death and that they could challenge the gift after his death. I am inclined to agree with this contention of the learned counsel for the appellants that the suit of the plaintiffs challenging the validity of the gift was maintainable by the sons of the donor after his death. As regards the first contention of the learned counsel for the appel lants, 'it is necessary to examine as to what is the principle of mushaa as enunciated under strict Hanafi Law. Tayabi has discussed this principle in his book on Muhammadan Law, III Edition paragraph

374. It is stated that under the text of Hanafi Law the gift of mushaa is not to be valid unlese the part of which gift is made is divided off and separated from the rest and the possession of the separated part given to the donee; provided that the gift of the undivided part is valid where one of the donees is a minor son of the donor. At page 401, mushaa has been explained to mean "undistributed or common". According to him the underlying principle is that the subject of gift must be transferred as completely as possible and that when it is capable of division from other property (provided that by division no advantage is lost) the transfer of possession is not complete unless it is divided off.

6. Baillie, in his Digest of Muhammadan Law, has dealt with the gift of a mushaa at page 523, 1957 Edition. It has been stated that the gift of mushaa or undivided part, of what does not admit of partition is lawful to a partner or to a stranger, while the gift of mushaa, in what does admit of partition is not lawful either to a partner or one who is not a partner. According to him and Tayabji, the gift of a mushaa in property that admits of partition to two men or to a group, is valid according to the two disciples, and invalid according to Abu Hanifa. But it is not void so that it avails to the establishment of property by possession.

7. Hamilton in Hedaya at page 483 states that a gift of part of a thing which is capable of division is not valid unless the said part be divided off and separated from the property from the donor, but a gift of part of an indivisible thing is valid. Shafei maintains that the gift is valid in either case; because a gift is a deed conveying property, and valid, as such, with regard to other things that are connected or separated in the same manner as in same. The ground of this is that as an indefinite share has the capacity to constitute property, it is consequently a fit subject of gift nor is a voluntary deed rendered null by the indefiniteness of the subject of it.

8. Mulla in his book, Principles of Muhammadan Law, 15th Edition, dealt with the gift of mushaa where the property is indivisible in paragraph 160, at page 139, he says that a gift of an undivided shale mushaa in property which is capable of division is irregular (fasid) but not void (batil). The gift being irregular and not void, it may be perfected and rendered valid by subsequent partition and delivery to the donee of the share given to him. If possession is once taken the gift is validated. There are some Exceptions to this rule ; firstly that a gift of an undivided share, though it be a share in property capable of division, is valid from the moment of the gift, even if the share is not divided off and delivered to the donee in the following cases :‑ (1) Where the gift is made by one co‑heir to another ; (2) Where the gift is of a share in a Zamindari or Taluka. (3) Where the gift is of a share in freehold property in a large commercial town. (4) Where the gift is of shares in a land company.

9. The learned counsel for the appellants has also relied on Ahmad Hussain and others v. Qadar‑ul‑Zaman (A I R 1927 Lah. 413). In support of his contention he stated that a mushaa or an undivided share does not admit of actual possession, consequently it cannot form the subject‑matter of a valid gift. It has been laid down in this authority that the admission as to delivery of possession by the donor in the deed of gift before the Sub‑Registrar in the mutation proceedings and in the written statement filed by him in a subsequent suit between the co‑sharers of the holding, cannot have the effect of putting the donees in actual possession of the undivided share. He has also relied on Bibi Balkis v. Sk. Wahid Ali and others (A I R 1928 Pat. 183) which lays down that according to the doctrine actually in force, the original strictness of the technical rule relating to mushaa has been considerably cut down, yet where the donor after the deed of gift remained in joint possession until after his death and administered the property and subsequent to his death one of his sons, one of the donees, remained joint with the rest and administered the property, held that the gift offended against the rule and Muhammadan Law as to mushaa and as to transfer of possession.

9. The learned counsel for the respondents has drawn my attention to Baillie' Digest of Muhammadan Law, 1957 Edition, page 523 and has argued that the gift of an undivided share is not void, but is only fasid and it can be validated by actual delivery of possession. If a person makes a gift to another of an undefined land (such as half or one‑fourth), such gift is invalid for the reasons already set forth. If, however, he afterwards divides it off and makes delivery of it, the gift becomes valid, because a gift required completion by seisin, and in this case nothing else remains indefinitely invalid with the gift at the time of seisin. He supported his contention by citing Tayabji's Muhammadan Law section 381 page 404, Third Edition, wherein it has been laid down that a gift invalid in its inception because of its subject not being divided off, may be validated by its subject being subsequently divided off from the rest of the property of which it forms part, and by possession being given to the donee of the divided part. He has also cited para. 160 of Mulla's Muhammadan Law, 15th Edition which lays down that a gift of an undivided share (mushaa) in property which is capable of division is irregular (fasid), but not void (battil). The gift being irregular, and not void, it may be perfected and rendered valid by subsequent partition and delivery to the donee of the share given to him. If possession is once taken the gift is validated. The same principle has been laid down by Syed Amir Ali, in his book, Muhammadan Law, page 38, that the gift of a mushaa is not void so that it avails to the establishment of the property by possession. At page 42, it has been stated that a Haba‑bil‑mushaa or a gift of an undivided joint property is not void but only invalid, and possession remedies the defect. The same principle has been laid down at page 55 of the same book. The learned counsel has also invited my attention to Fatawa‑i‑Alamgiri, Vol. 7, 1932 Edition, page 76, Majmuaul Fatawa, Maulana Abdul Hayee, page 26, Fatawa Darul Alum, Deuband; page 175, in which the same principle has been laid down that the gift of a mushaa even if invalid at its inception is validated by the delivery of possession.

10. The learned counsel for the respondents after relying on the strict Muslim Hanafi Law, has urged that the evidence in the present case clearly proved that the donor at the time of making the gift delivered possession of the land in dispute to the donees and the donees continued in possession of the same till the present suit for possession was filed against them. Consequently, he has urged that the gift was valid. Mutation No. 16 clearly shows that the gift was of 48 kanals of land. The plaintiff‑appellants sued for the possession of the same which would, show that the donees came into possession of 48 kanals of land which was gifted to them and remained in their possession till the present suit was filed. Bahawal Bakhsh (P. W . 6) admitted that during the lifetime of the donor the land in dispute was being cultivated by the donees and they were receiving its produce, that the donees paid the land revenue for the property in dispute and that the receipts relating to the land revenue were issued by him which bore his signatures; and that the donees were in possession of the land in dispute even on the day the witness made his statement. Allahdad (P. W. 2) and Khuda Bakhsh (P. W. 3) also admitted that since after the gift the donees have been continuously‑in cultivating possession of the land gifted to them by Major Saif Khan, the donor. The produce of the land which was in possession of the donees was being taken by them and that the produce of the rest of the land was being taken by Major Saif Khan. The entries in the revenue papers shows the land to be jointly held by the donor and the donees. This depends on the manner in which the records are maintained by the revenue autho rities but the fact remains that from the day of the gift, the gifted property i.e., 48 kanals of land had always been in exclusive possession of the donees and their possession on that land started during the lifetime of the donor. Khasra Girdawari Exh. P. J. further supports the contention of the learned counsel for the respondents that the donees have been in actual cultivating possession of the land gifted to them.

11. In view of what has been said above, I am clearly of, the view that the principle of mushaa, according to the strict Muhammadan Law, is that the gift of an undivided share in property capable of division is invalid (fasid), but if subsequent to the gift, the property gifted, is specifically earmarked or partitioned and handed over to the donees, and they remain in actual physical possession of the property, the gift becomes valid. The evidence in the present case, clearly established that the donees came into possession of 48 kanals of land either at the time of gift or immediately after the gift and they remained in posses sion of the gifted property during the lifetime of the donor and even after that uptil now. In these circumstances, the gift is valid and the plaintiff‑appellants' suit has been rightly dismissed by the learned District Judge. The appeal fails, and is dismissed with costs. K. B. A. Appeal dismissed.