1992 PLP 2127 (MLD)

(iii) delivery of the possession of the subject of the gift by the donor to they donees.

6. Although it is an essential requirement for the completion of the gift that the possession of the land should be delivered to the donee but here the possession does not mean the actual physical possession. Even the gift can be completed by delivery of the constructive possession of the subject‑matter or, the gift. As it has been laid down in Section 150 of the Muhammadan Law! which reads as under: "150.Delivcry of Possession.‑‑‑(1) It is essential to the validity of a gift that there should be a delivery of such possession as the subject of the gift is susceptible of. As observed by the Judicial Committee, "the taking of possession of the subject‑matter of the gift by the donee,' either actually or constructively" is necessary to complete a gift." And the same view also Finds support from Mt. Natho's case (AIR 1949 Lah. 238 (239) which is as under:‑ " The conditions of a valid gift in Muhammadan Law arc 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. 1n suitable cases, constructive possession may suffice to meet the legal requirements:'

7. Now, it is not essential for the validity of the gift that actual possession should be transferred to the donee. A gift can be declared as null and void on the ground of non‑delivery of the physical possession where the gift has been challenged by the donor himself and not on the suit of a third party. The third party cannot seek the cancellation of the gift on this ground. Actual physical possession is not necessary for the completion of the gift even where the donor has authorised the donee to take the possession or the donor has put the donee in such a position to take the possession that is sufficient for the completion of the gift. As it has been discussed by Sayed Ameer Ali in Muhammadan Law at page 90 which reads as under:‑ "Actual possession, however, does not seem to be necessary to complete the hiba. According to Durr‑ul‑Mukhtar, "to be in a position to take possession is tantamount to taking possession;" in other words, to place the donee in a position‑to take possession is equivalent to delivery of possession. Similarly investing with authority for what purpose is equally sufficient:"

8. In the instant case, as the donor has transferred the land to the donee and she has not challenged the gift, rather the gift has been owned by her and even if at all the possession has not been transferred to the donee by the donor as stated by the learned Counsel for the respondents, even then the donor has enabled the donee to obtain the possession because the donor Mst. Bago and Alif Din, predecessor‑in‑interest of respondents 1 to 8 were real brothers and sisters and they were also co‑sharers and now the donee has? stepped into shoes of Mst. Bago, thus, he is also a co‑sharer of the predecessor‑in‑interest of the respondents 1 to 8 and he can obtain the possession by way of the partition of the land, so by the execution of the gift deed, the donor has enabled the donee to obtain the possession of the land and where the donor has enabled the donee to obtain the possession of the land,' then it will be sufficient for the completion of the gift. As it has also been elaborately discussed by Syed Amir Ali, in his book, "Muhammadan Law", a page 114 which is as under:‑ "Thus, a gift of immovable property in the occupation of tenants will be complete either by the delivery of the title‑deeds or by requisition to the tenants to attorn to the donee, and of zemindari rights by mutation of names in the Collector's Register. So a valid gift may be made of property attached by the Collector for arrears of revenue by the donor transferring such interest as he possesses at the time. In other words, a gift is completed if the donor does all he can to perfect the contemplated gift either by delivering actual possession of the property or placing the donee in a position to take possession of it."

9. I have examined the case from another angle that the donor, Mst. Bago and Alif Din, plaintiff‑predecessor‑in‑interest of respondents Nos. 1 to 8 were real brothers and sisters and were also co‑sharers in the land in dispute and if at all, Alif Din was retaining the possession of the land, even then, he was retaining the possession of the land being co‑sharer of Mst. Bago and now by the execution of this gift deed, Gulloo donee has stepped into the shoes of Mst. Bago and Gulloo donee and Alif Din are co‑sharers and the possession of one co‑sharer is the possession of the other co‑sharers, thus even if Alif Din is retaining the possession, that will be deemed to be constructive possession of the donee, so, the constructive possession has been transferred to the donee and transfer of the constructive possession to the donee is sufficient for the completion of gift. Thus, this view finds support from AIR 1930 Oudh 71 (73) which reads as follows:‑ "Where the subject‑matter of gift is only capable of constructive possession and such possession accompanies the gift, the gift must be held to be valid."

10. In the instant case, the learned District Judge has set aside the gift on the ground of `mushaa' as it has been made from an undivided land capable of division and the possession has not been transferred to the donee, as stated above, that the donee herself was retaining constructive possession what sort of possession she was retaining has transferred to donee and she has enabled the donee to obtain the physical possession. The gift of undivided share capable of partition is not void and it can be invalid but it may be perfected and rendered valid by subsequent partition and delivery of the possession to the donee. This view also finds support from AIR 1936 Allahabad 473 which reads as follows:‑' "The rule of Muhammadan Law is with certain exceptions with which we are not concerned that a gift of an undivided share in property which is capable of partition is invalid but not void ; the gift being invalid and not void, it may be perfected and rendered valid by subsequent partition and delivery to the donee of the share given to him."

11. In the instant case, the donor Mst. Bago gifted the land measuring 13 Kanals and 2 Marlas to her son Gulloo and she gifted the land from within her specific share and she has not gifted the land beyond her share and this is established principle of law that the gift of a definite share can be made and is valid under Muhammadan Law as held in AIR 1930 Oudh 71 (74) which reads as under:‑ "A definite share in immovable property, zemindari, 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." The term `mushaa' has been defined in Mohammadan Law by Sayed Amir Ali on page 78 which reads as follows:‑ "The word "mushaa" is derived from `shuyuu' which means confusion. Where several persons own a particular property joint and undivided, no one of them can predicate that his interest is attached to any specific portion. The gift by one of the co‑sharers of his share in such a property is likely to create confusion in its enjoyment by all the????????????? co-?sharers." This definition of the term of the `mushaa' shows that the basic concept of theft term `mushaa' and the basic spirit of `mushaa' was that no confusion. should be created by the donor by creating a gift of undivided portion of the property and the term `mushaa' had been introduced to avoid the confusion because no one can predict about the interest attached to specific portion of the property. In the instant case, no confusion has been created by the gift because the donor was retaining a specific share in the property and she has gifted her specific share which has been entered in the record‑of‑rights and she has gifted her specific share and she' has also transferred the constructive possession. Now when her share has been specified in the record‑of‑rights, as stated above she has gifted her specific share then naturally no confusion has been created by creating the gift of that specific share and by partition, the donee, will obtain the possession of the land to which the donor was entitled.

12. Even otherwise, the rule of `mushaa' has been made flexible by the passage of time especially in this Sub‑continent where this rule has been considerably relaxed in its application in all cases which came before the Courts. It has been adopted according to the new environments and has been made applicable in consistently with the principle of justice, equity and good conscious. The Courts of Sub‑continent have given effect to the basic spirit of i this rule then to its letter and maintained the gift in all those cases where the basic intention to gift on the part of the donor has been expressed ins unequivocal terms and had further been attended by honest effort's on his pari to complete the gift by divesting himself of the control over the property in such a manner as would imply divesture in the eyes of law of the land prevailing at that time. As it has been considered by a Division Bench in PLD 1903 BJ 1 and the same view finds support from AIR 1934 Bombay 21 ands PLD 1985 AJK 1.

13. In the instant case, a registered gift deed was executed by donor in which she stated in unequivocal terms that she has gifted the land to donee and she never challenged the gift, rather she owned the gift and she had divested herself from the land and have done whatever she could have done, thus, the principle of `mushaa' has no tearing on the facts of the present case.

14. Even, according to the Arabian Law‑works, the term `mushaa' was made applicable only to small plots of land, houses and it does not seem to have any effect or made applicable to specific shares in the large estate as in this Sub‑Continent. As stated above, that now by the passage of time, in this Sub‑continent in the larger estate, the shares 9f all the co‑sharers have been determined and recorded in the record of rights and a co‑sharer can obtain the possession of his specific share by way of partition and no confusion can be created about his share because partition is to be made, as stated above, and the term `mushaa' will only apply where, a confusion has been created about a specific share. It has also been elaborately discussed by Syed Amir Ali in the Mohammadan Law that the term `mushaa' will apply to small plots of land and the houses. I would like to reproduce page 91 of the Mohammadan Law by Syed Amir Ali, which is as follows:‑ "From the examples given in the Arabian Law‑works, it can easily be inferred that the doctrine of `mushaa' was applicable only to small plots of lands and houses; it does ‑ not seem to have been contemplated by the Arabian jurists, that the doctrine should be applicable to specific shares in large estates or what are called in India, zemindaris. At the time when this doctrine was first enunciated among the Hanafis, there does not appear, from contemporaneous records, to have existed large estates such as are known to us in India. The Arab conquest had broken up the landed property of ancient Persia, and the Dehkan, who was zemindar under the Sassanides, became a mere yeoman or farmer. Under the Arab rule, the land of the country was distributed either among the Arab colonists, or allowed to remain in the hands of the old proprietors on a scale which would prevent their forming combinations to destroy the new government; such seems to have been the economic condition of society about the beginning of the Hanafi Law, and the time when the early jurists of that school flourished. The wealth of the people was chiefly deprived from common trade, immense flocks of sheep and goats, large groves and plantations. Apparently, therefore, the doctrine of `mushaa' was not intended to apply to large landed estates such as came into existence in later times:"

15. In the instant case, a registered gift deed was executed by the donor in favour of the donee and she has made the declaration of the gift in unequivocal terms in the gift deed and she has done whatever she could have done. She has transferred the constructive possession to the donee and her specific share has been specified in the Revenue Record and she has made the gift from within her specified share. She has enabled the donee to obtain the possession by way of partition to which she was entitled. Thus, no confusion has been made by creating the gift in favour of the donee and the learned District Judge has wrongly applied the principle of `mushaa' to the instant case. Therefore, this appeal is accepted and the, judgment and decree of the learned District Judge, Muzaffarabad are hereby set aside and the judgment and decree of the learned Sub‑Judge, is restored. Keeping in view the peculiar circumstances of the case, no order as to costs. A.A/516/H.C.A?????????????????????????????????????????????????????????????????????????????????? Appeal accepted