Manohar Lall, J.This is an appeal on behalf of defendant 7 against the preliminary decree for partition passed by the learned Subordinate Judge of Motihari, the subject-matter of partition being kast lands belonging to a Mahomedan family situated in a number of villages. A short genealogical table will explain the questions in controversy. One Junab Ali died leaving two sons, Mohammad Din and Muradudin, and also a daughter, Bibi Sarla. Mohammad Din married Bibi Nawbati from whom he had a daughter, Bibi Habiban, defendant 5 in the action. Later on he married Bibi Bhango, defendant 9 in the action, from, whom he had two sons, Fateh Muhammad, defendant 10, Abdul Hasan, defendant 4, and two daughters, Bibi Mariam, defendant 6 and Bibu Kaniz, defendant 7. Abdul Hasan was the father of Mazharul Haq, defendant 1, Zahurul Haq, defendant 2, and of Bibi Sayeeda Khatoon, defendant 3. Muradudin, the second son of Junab Ali, married Bibi Bhango. They had a son, Wali Muhammad, defendant 8, who at the time of the death of Muradudin was aged 12 or 14 years only and so he and his estate which he inherited from his father came into possession of Bibi Bhango, who was his guardian. Bibi Bhango, however, a few years later married the elder brother of her husband as stated already. Muhammad Din is also dead.

2. On 3rd April 1939, Bibi Bhango, who according to the Mahomedan law was possessed of one anna share in the lands as the heir of her deceased husband Muradudin and also one anna share as the heir of her deceased second husband Muhammad Din, executed a deed of gift in favour of defendant 7. The plaintiff, who is an auction-purchaser of the interest of defendant 10, instituted a suit giving rise to this appeal on 18th January 1940, for a partition in which he claimed that a separate patti of two annas should be given to him. Some of the defendants merely put forward their claim to separate patti. Defendant 8 claimed that he was entitled, to the, entire eight annas share of his father Muradudin upon the ground that Bibi Bhango relinquished her claim to one anna share as the result of a certain batwara which was effected between him and his mother. He also challenged the validity of the deed of gift in favour of defendant 7. The other defendants besides challenging the validity of the deed of gift in favour of defendant 7 also pleaded that the gift was void as offending the doctrine of Mushaa in Mahomedan law. Defendant 6 also took the plea that the entire suit was bad for non-joinder of Bibi Sarla, the daughter of Sheikh Junab Ali, who has one fifth share in the estate under partition, and was, therefore, a necessary party to the suit. In reply to this it was asserted by the plaintiff and by defendants 3 to 5 and 7 that Bibi Sarla is not a daughter of Junab Ali, and secondly that even if she was the daughter of Junab Ali she had no title to any of the properties in question as they did not originally belong to Junab Ali.

3. The learned Subordinate Judge came to the conclusion that Bibi Sarla was the daughter of Junab Ali, but the properties under partition did not originally belong to him, and, therefore, Bibi Sarla had no share. He further found that the story set up by defendant 8 that Bibi Bhango had relinquished her claim to one anna under the inheritance of her husband Muradudin was not true. He accepted the case that Bibi Bhango had a total share of two annas, that is to say one anna inherited from Muradudin and one anna inherited from Muhammad Din. He also found that the deed of gift was duly executed by Bibi Bhango and the donee, defendant 7, was put in possession. But he took the view that as defendant 7 could not be a co-heir of Bibi Bhango in respect of the inheritance of Muradudin, although she was a co-heir so far as the inheritance of Muhammad Din was concerned, the deed of gift would be valid only to the extent of one anna which the donor inherited from Muhammad Din. He also held that as the law contemplated a partition before the controversy arose and that was not done in this case, therefore, Bibi Bhango could not execute any valid gift in favour of defendant 7 in respect of the share inherited by her from Muradudin, and directed that that share should go to her children by the two husbands, that is to say, defendants 6, 7, 8 and 10. Against this decision, defendant 7 has preferred this appeal and it is confined to the consideration of the question whether the learned Subordinate Judge was right in holding that the deed of gift in her favour was invalid to the extent of one anna in the inheritance of Muradudin. The learned advocate for defendant 8, the respondent before us, challenged the other findings of the learned Subordinate Judge but only to support the decree which was passed. He argued that the donor herself was not in possession of one anna share, that the donee was not in possession, and as there was admittedly no partition in fact before the deed of gift, the prohibition contained in the doctrine of Mushaa was correctly applied.

4. We have perused the entire evidence in the case and are satisfied that the decision of the learned Subordinate Judge that the donor was in possession before she executed the deed of gift is correct. Defendant 8, who was a witness in the case, admitted that his father died when he was 12 to 14 years of age and that his mother was his guardian up to the time of his majority. He set up a batwara between his mother and himself but that story has not been believed by the learned Subordinate Judge and there is no cross-objection or cross-appeal by defendant 8. We must, therefore, accept the position that there was no relinquishment by Bibi Bhango. The witness then proceeded to say "Before the batwara her share in the inheritance of my father was two annas." From this it follows, in my opinion, that Bibi Bhango took possession of her share on the death of her first husband. It is not the respondents case that somebody else was in possession of the 8 annas left by his father. Attention was drawn to the khatian and the khewat (EXS. C-1 to C3-1) to show that the name of Bibi Bhango does not appear in the record of rights although it was prepared after the death of Muradudin. But the learned Subordinate Judge has shown that even the names of the daughters of Muhammad Din, who admittedly have shares in the property under partition, are not to be found in this document for a very good reason that the names of only the male members were entered in the record of rights. Similarly the rent receipts (Exs. A-l series) relied on behalf of defendant 8 cannot assist him because D. w. 7, Narsingh Lal, stated that although the jama-bandis stand in the name of Wali Mohammad and Fateh Mohammad, yet all the defendants are interested in the jotes.

5. After the deed of gift was executed, this donee would have thus no difficulty to obtain possession, and D. w. 13, Bindhyachal Lal, actually comes to give evidence to prove that defendant 7 took possession under the gift. She was already a cosharer and, therefore, there could be no obstacle in her obtaining possession. The evidence of D. w. 13 was sought to be challenged by the learned advocate who appears for defendant 8. But he has not printed that evidence and, therefore, under the rules of this Court he is bound to accept the finding of the learned Subordinate Judge as to what D. W. 18 stated. The result is that I must hold, in agreement with the learned Subordinate Judge, that the donor was in possession from the death of her first husband with regard to one anna, and from the death of her second husband with regard to two annas in the property under partition, and that since the date of the deed of gift the donee is in possession. It may also be stated here that the validity of the deed of gift otherwise was not and cannot be challenged before us.

6. A number of cases were cited before us on behalf of the appellant to show that the doctrine of Mushaa was not applicable in the present case. Most of these cases were reviewed by a Division Bench of this Court in Bibi Bilkis Vs. Sk. Wahid Ali and Others, . , therefore, do not propose to examine the cases again, but would particularly refer to two cases of their Lordships of the Judicial Committee. In Mahomed Buksh Khan v. Hosseini Bibi (1988) 15 I.A. 81 the validity of a deed of gift was also questioned on the ground of the Mahomedan doctrine of Mushaa namely, that a gift of an undivided share in a subject capable of division is not good because it would lead to confusion. Lord Macnaghten, who delivered the judgment of the Board, observed as follows at p. 95:

But it appears to be settled by Mahomedan law that if there are two sharers of property, one may give his share to the other before division. That seems to be established by a passage in Macnaghtens Precedents, Case 13, which was adopted in the case to which Mr. Mayne referred, in Ameena Bibee v. Zeifa Bibee (1865) 3 W.R. 37 .

Now, if one of two sharers may give his share to the other, supposing there are three sharers, what is there to prevent one of the three giving his share to either of the other two Mr. Doyne was asked what confusion that would introduce. Mr. Doyne took refuge in the doctrine itself, which he said was a very refined doctrine. To extend it to this case would be a refinement on a refinement, amounting in their Lordships opinion almost to a reductio ad absurdum.

7. In Muhammad Mumtaz Ahmad v. Subaida Jan (1989) 11 All. 460 . Sir Barnes Peacock, who delivered the judgment of their Lordships made these observations at p. 214:

The doctrine relating to gifts of mushaa was considered by this committee in Ameeroonissa v. Abedoonissa (1974) 2 I.A. 87 (P.C) and by the High Court in Calcutta, in Mullick Abdul Guffoor v. Muleka (1984) 10 Cal. 1112 . The facts of those cases differ from the present, but they throw light upon the doctrine.

It is unnecessary for their Lordships to express an opinion as to whether the gift in question was invalid or not, for it appears that even if invalid, possession given and taken under it transferred the property.

The authorities relating to gifts of mushaa have been collected and commented upon with great ability by Syed Ameer Ali in his Tagore Lectures of 1884. Their Lordships do not refer to those lectures as an authority, but the authorities referred to show that possession taken under an invalid gift of mushaa transfers the property according to the doctrines of both the Shiah and Soonee schools: see pp. 79 and 83. 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 strictest rules.

8. In Ibrahim Goolam Arifi v. Saiboo (1908) 35 Cal. 1 (P.C) , another case of the Privy Council, Lord Robertson, who delivered the judgment of the Board, observed as follows:

It would be inconsistent with that decision (namely, the decision in Muhammad Mumtaz Ahmad v. Subaida Jan (1989) 11 All. 460) to apply a doctrine which in its origin applied to very different subjects of property, to shares in companies and freehold property in a great commercial town.

9. In Ebrahim Alibhai Akuji Vs. Bai Asi, . Tyabji J., has examined the subject at great length and I respectfully agree with his observations. I do not see why a donee of mushaa, who has taken joint possession of the subject of a gift, and who finds it convenient and practicable to continue to hold that property without partition, should not be allowed to do so. All that the law is concerned to find 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 had partitioned the property and given it to a donee in a definite share, the donee could still hold the property as a tenant, in common with his cosharers, and no question could have been raised regarding the validity of the gift, The same result, in my opinion, should follow provided the donee has been found to be in possession. Possession of a co-owner or a co-tenant is a possession which has to be reconized by the law. I desire to observe that almost in every one of these cases, which have been cited and which could be cited, importance was rightly given to the question whether possession was obtained by the donee or not. For instance, in Mahomed Buksh Khan v. Hosseini Bibi (1988) 15 I.A. 81 (PC) their Lordships observed:

In this case it appears to their Lordships that the lady did all she could to perfect the contemplated gift, and that nothing more was required from her.

10. In Muhammad Mumtaz Ahmad v.Subaida Jan (1989) 11 All. 460 their Lordships stressed that even if the gift was invalid possession given and taken under it transferred the property, stress was, therefore, laid upon whether possession had passed. In Bibi Bilkis Vs. Sk. Wahid Ali and Others, the gift was hit by the doctrine of Mushaa because it

was not perfected by transfer of possession and that the properties although capable of division were not divided or sought to be divided.

11. I read the last observation to mean that it was found as a fact that no possession was transferred and not that the transfer of possession would have been immaterial if the property was not divided before the deed of gift was made. The truth of the matter is that this archaic rule of law, as it is sometimes called, is not adapted to the progressive state of modern society and was originally a convenient rule by which it could easily be decided that a gift would be considered valid only if possession has been transferred to the donee. If it was an undivided share and no partition had been made--the subject being capable of partition--the donee failed because by the operation of this rule it could readily be decided as a fact that possession had not been given and was not intended to be given. But where possession had been intended to be given and the donor does everything in his power to part with the property and to sever himself from it, the mere fact that he did not choose to divide the property before he put the donee in possession after making a deed of gift cannot in law be allowed to make any difference. Each case will be decided on its own facts as to whether possession has or has not been delivered and whether the intention/ of the donor to divest himself of the property has or has not been carried out.

12. It was faintly argued that a distinction ought to be drawn in this case because defendant 7 was not a co-heir of Bibi Bhango. I do not understand the distinction sought to be made. Defendant 7 was certainly her co-heir so far as the inheritance of Muhammad Din was concerned with Bibi Bhango who had one anna share therein. The whole of the 16 annas, which is now sought to be divided, belonged to Bibi Bhango and to defendant 7. They were cosharers. Therefore the argument which appealed to the learned Subordinate Judge cannot be accepted. Mr. Ahmad Reza appearing for defendant 8 further argued that the subject-matter of the gift was a number of kaimi raiyati lands as described in schedual 1 and, therefore, he argued that no gift could have been validly made unless there was a partition before. But the case in Abdul Aziz v. Fateh Mahomed Haji (1911) 38 Cal. 518 , furnishes a complete answer to this contention. In that case the subject-matter of the gift was a annas share in a kaimi raiyati holding in favour of the plaintiff, who was a nephew of the donor. It was found that the donor admitted the plaintiff to joint possession with himself and recognised him in such possession and, therefore, the donor was not allowed to say that there had been no valid gift and the doctrine of Mushaa was held inapplicable to such a case. In this case it has been found as a fact relying upon the evidence of D.w. 13 that the donee has got into possession, and it is to be observed that it is not the donor who is objecting in this case but the other cosharers who have nothing whatsoever to do with the share of Bibi Bhango.

13. For these reasons I am of opinion that the> appeal of defendant 7 should be allowed and in the partition she should be allotted two annas share instead of one anna. The appellant is entitled to her costs from defendant 8 only as the other defendants did not contest the appeal. There is a cross-appeal by defendant 6. It is argued on her behalf that Bibi Sarla has admittedly one-fifth share in the inheritance of Junab Ali and that the properties under partition should be held to belong to Junab Ali. Mr. K Dayal who appeared for another respondent took a preliminary objection that it is not permissible for a co-respondent to make a cross-objection against another co-respondent. I do not agree with this contention because in a partition suit, every defendant is in the position of a plaintiff so far as his particular share is concerned.

But apart from that it is more satisfactory to decide the case on the merits.

14. Before defendant 6 can succeed in her cross-objection, it is necessary for her to show that the properties under partition belonged to Junab Ali. It is conceded that on the record as it stands there is no evidence whatsoever from which it can be held that the property was the property of Junab Ali. But it was argued that the case should be remanded to allow this defendant to adduce further evidence by calling upon defendant 8 to produce some papers which are in his possession. Attention was drawn to a petition filed at p. 48 on behalf of this defendant before the learned Subordinate Judge. In that it was stated that defendant 8 has with him certified copies of order-sheet and judgments and compromise petitions about sharahmoian lands and other documents of 1898 which would show that the properties under partition belonged to Junab Ali, and, therefore, it was prayed that defendant 8 may be ordered to file those papers in Court. The learned Subordinate Judge rejected the prayer by his order No. 36 passed on the same day on two grounds, firstly, that defendant 6 had already closed her case and that she should have called upon defendant 8 earlier, and secondly, that defendant 8 who in his evidence supported the case of defendant 6 clearly stated in the deposition that he has no document to show which properties had been acquired by Junab Ali.

15. In my opinion the learned Subordinate Judge was right in rejecting the application made at such a late stage. Even if we ordered defendant 8 to produce the documents, he can always say that he has no document in his possession and he can refuse to produce them either deliberately or because he has not got them. As the other defendants did not admit the title of Bibi Sarla to any share in the properties under partition, this question which is now sought to be raised not by a defendant as to the extent of her title, but by a defendant who seeks to show that title of some share is in some-body else, who admittedly is not in possession, cannot be allowed to be raised in a simple [partition suit: see Wajihunnissa and Others Vs. Bankebehari Singh and Others, . The result is that the cross-appeal fails and must be dismissed with costs but payable to the respondent for whom Mr. K. Dayal appears.

Beevor J.

16. I agree.