1. The events antecedent to the litigation that have led upto this appeal, may be shortly stated : One Munir-ud-Din died leaving a widownamed Subjan, a minor son, named Najibul Islam and five daughters, one of whomis the present plaintiff. In accordance with the rules of inheritance inMuhammadan Hanfia Law, the share of each of the heirs of Munir-ud-Din would beas-follows: 2 annas for the widow, 4 annas for the minor son and 2 annas foreach of the five daughters. The plaintiff, as one of the daughters ofMunir-ud-Din, claims 2 annas share as her inheritance from her father and alsosmall fractions of shares that she says she inherited from two of her sisters.The suit is for a declaration of her title to the properties mentioned in theplaint which the defendant Najibul Islam claimed to have acquired by gift fromthe plaintiff and her two deceased sisters in 1890. The plaintiff alleges thatthe gift set up by her brother Najibul Islam never took place and that if itdid take place, it was invalid.

2. The original Court held that the gift did take place andthat it was valid. On appeal to the District Judge by the plaintiff, thisjudgment was upheld. The plaintiff now appeals to this Court and attacks thejudgments of the two Courts below on two grounds, namely, first, that the lowerCourts should have held that the subject of the gift being undivided shares ina zamindari, there could not be any valid gift of such shares, in accordancewith the principles regarding gift of Musha: and, secondly, that the donors hadno possession over their respective shares when the alleged gift is said tohave been made and hence there could not have been any delivery of possessionwhich is a condition precedent to the validity of a gift.

3. It appears from the pleadings in the case that the giftof 1896 was a verbal one and made by all the five daughters of Munir-ud-Din infavour of their mother, Subjan and their minor brother Najibul Islam. It isfirmly settled that under the Muhammadan Law, a gift of immovable propertiescan be made verbally without recourse to a written and registered document. Inthe case of Ramar-un-Nissa Bibi v. Husaini Bibi 3 A. 266 (P.C.), a verbal giftof landed property if followed, by a transfer of possession, was consideredvalid. Section 123 of the Transfer of Property Act, no doubt, requires that agift of immovable properties must be effected by a registered instrument signedby, or on behalf of, the donor and attested by at least two witnesses; butsection 129 makes an exception in favour of gifts effected under any rule ofMuhammadan Law. We may here observe that the Courts below have held that thegift, as alleged by the defendant, was, as a matter of fact, made in favour ofSubjan Bibee and Najibul Islam. This is a finding of fact.

4. The first ground taken necessitates an enquiry as towhether the gift made by the five daughters of Munir-ud-Din to their mother andminor brother, was or was not what is called Hibabil Musha, The word Musha isderived from Shuyua which means confusion. When a property is owned by severalpersons jointly and without any division, none of them can point out anyspecific portion of that property as his own without partnership of any of theother co-sharers. If a co-sharer in such a property makes a gift of his ownshare without first separating it from the other share, a confusion might ariseand hence the law on the subject, according to the doctrine of the Imam AbuHanifa, is that a gift of Musha which is not capable of division is valid, butin the case where the Musha can be partitioned without any materialinconvenience to the share-holders and without any material deterioration ofthe property, a gift of Musha is invalid (fasid) and not void (batil). Therehas been a marked difference between the opinions of the Imam and his twofamous disciples, Mohammad and Abu Yusuf. Generally speaking, the views of thedisciples are in accordance with the demands of a progressive society.

5. From the examples given in the books of authority onMuhammadan Law, it may easily be inferred that the doctrine of Musha wasapplicable only to small plots of lands and houses and it does not appear thatthe Mahomedan Jurists of that time ever contemplated the changed condition ofsociety and the ownership of specific shares in large estates or Zamindaris asknown to us in this country.

6. The Alamgiri, which is an authority on the subject, hasthe following passage on Aiba-bil-Musha; "The gift of Musha that admits ofpartition to two men or to a group is valid according to the two disciples(above named) and invalid according to the Imam. But it is not void so that itavails to the establishment of property by possession." From the aboveauthorities, it follows that the Hiba-bil-Musha (gift of undivided jointproperty) is not void but only invalid and possession remedies that defect.

7. Majma-ul-Anhar (page 345) has the following passage inregard to the view held by the Imam Abu Hanifa : Yakub Pasha has held that ifa person makes a gift to two persons of a thing which is capable of divisionthat is an invalid hiba, but it is not void, (batil), according to the Imam AbuHanifa; so, if the donees take possession, it establishes the property in themaccording to his saying and the Fatwah is according to it." In the case ofSheikh Muhammad Mumtaz v. Zulaida 11 A. 460 : 16 I.A. 205, their Lordships ofthe Privy Council remarked that "the doctrine relating to the invalidityof gifts of Musha is wholly unadopted to a progressive state of society andought to be confined within strict rules."

8. In the case of Ameeroonnissa v. Abadoonnissa: 2 I.A. 87 : 15 B.L.K. 67 : 23 W.R. 208, their Lordships ofthe Privy Council discussed the question, whether the objection of invalidityof a gift on the ground of Musha was applicable to shares in zamindaris forwhich revenue was paid separately. Their Lordships held that the principle ofMusha did not apply to shares in an unpartitoned zamindari and it was fartherheld that although a right to effect partition may exist, the shares in azamindari appear from the special legislation relating to them, to be capableof distinct enjoyment before partition by reception of the separate and definedrents by the holders thereof and they, therefore, do not fall within theprinciple of the law of Musha.

9. It is worthy of note that the present gift was not to anystranger. It was a gift by five of the co-sharers to two other co-sharers. Inthe case of Mahomed Buksh Khan v. Hosseini Bibi : 15 I.A. 81: 16 C. 684, their Lordships of the Privy Council held "that where aproperty is held by several co-sharers, any one of them may give his share toany one of the other co-sharers and that such a gift would not be open to theobjection of Musha. It is clear, therefore, that when persons own a propertyjointly, any sharer may make a gift of his share in that property to any othersharer without the formality of a delivery of possession. The donee having beenalready in possession as a sharer does not require a formal delivery ofpossession in order to make the gift operative.

10. It was held in the case of Sheikh Muhammad Mumtaz v.Zaheeda : 15 I.A. 81 : 15 C. 684, that a declaration by thedonor in the deed of gift that possession had been given, bound his heirs. Inthe present case in an application by the plaintiff (Exhibit A) dated the 11thFebruary 1900, it was admitted that she had made the gift in favour of thedonees. No doubt, there is another application (Exhibit D) in which theplaintiff, while admitting the above statement alleges that she made theadmission in order to save her mother,--one of the donees--from a criminalprosecution which was impending against her on account of her having got herand her sons name registered for the entire share of Maunir-ud-din. Thislatter. application was made in July 1905, i.e., sometime after the disputebetween the plaintiff and the defendants Nos. 1 and 2. It is clear, therefore,that not only was the gift made but that the plaintiff admitted having made itafter it had been made.

11. The gift in the present case was in favour of an adultand a minor (mother and son). A gift to an adult and a minor is valid as thepresent developed Hanafi Law disapproves of the strictness of the rule whichprevents a gift simultaneously to an adult and a minor. This is shown by adevice pointed out by Juists to escape from the operation of the principles ofMusha: and it is the following:--"But if the gift be to an adult and aminor, the latter being in the purvarish of the former or to two sons, oneadult and one minor, it is not valid, for possession on behalf of the minor,could be taken by his guardian." "However" continues the Rudd,(Ruddul Muhtar, Volume IV, page 783) "there is a device by which a giftjointly made to an adult and to a minor may be made validly, viz., the entireproperty may be consigned to the adult and then a gift of it may be made toboth. In such a case the adult donee would be a trustee for the minor and possessionbeing already vested in him as depository, the objection of Shuyun would notapply as to the gift of the share of the minor." The accepted doctrine,therefore, is that there is no inherent illegality in a joint gift to an adultand a minor, the objection has its origin in a desire to prevent disputes butwhere the interests of the two are sufficiently specified, there can be noapprehension of any confusion or dispute.

12. We must hold, therefore, that the doctrine of Mushacannot apply to the present case; for the reason that in the first place thedonors are co-sharers of the donees, in the second place the gift was made bythe donors at one and the same time to the donees. This was in essence onetransaction which transferred the shares of all the sisters by way of gift tothe donees and the doctrine of Musha can, therefore, have no application.

13. The next point urged on behalf of the appellant is thatthe donors were, at the time of the gift, not themselves in possession of theirrespective shares, and hence they could not make over possession to the doneesat the time when the gift is said to have been made and the gift is, therefore,invalid. With regard to this part of the case, the finding of the lowerappellate Court is to the following effect: It is then contended that the giftwas invalid for want of delivery of possession. A passage in the evidence ofthe widow (Subjan) is relied upon, where she says that the daughters were neverin possession. I do not think that I would, be justified in pressing themeaning of the widows language to a logical conclusion.. The family werejointly deriving maintenance from the income of the property which was beingmanaged for them by the gomastha. The daughters verbally gave up all rights tothe property, then the donees thereafter actually exercised possession over theproperty and the son had his name registered in the public State Registers.Thereafter the donors in a public and open manner acknowledged that they hadtransferred their rights by a gift. I am of opinion, that there was suchdelivery of possession as in the circumstances and having regard to the natureof the property the donors were capable of." The above is a clear findingof fact to the effect that on the day of the gift the donors had possessionwhich they transferred to the donees and subsequently acknowledged having doneso. The appellants cannot invite us to disturb this finding of fact.

14. The gift is said to have been made in favour of thewidowed mother Subjan and her minor son Najibul Islam. She obtained Letters ofAdministration to the estate of her deceased husband Munir-ud-Din on behalf ofher minor son Najibul Islam. It is reasonable to hold that she made a verbalgift of the shares which she had acquired by gift from her daughters in favourof her minor son Najibul Islam and hence she treated, in her application forLetters of Administration, her minor son as the owner of the entire estate leftby her husband. The Mahomedan Law on the subject of delivery of possession in caseof a gift made by one of the parents of a minor child in favour of that childis clear. In such a case, inasmuch as the parent is the de fact) guardian ofthe minor, it is not necessary that the formality of a formal delivery ofpossession should be resorted to.

15. The appeal, therefore, fails and is dismissed withcosts. The judgment in this appeal will govern Appeal No. 1384 of 1908.

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Jahedunnessa Bibi vs.Najibul Islam (02.09.1910 - CALHC)