Richard Garth, C.J.

1. The main question in the case is the validity of thisdeed of gift. There is no doubt that but for this deed the plaintiffs would bethe heirs of Kaniz Fatima, at least to the main portion of the property. Butthey deny the validity of the deed on several grounds:

(1st) That Kaniz Fatima never executed it; (2nd) that if shedid she was not of sound mind when she did so; and (3rd) that the deed isinvalid by the rules of Mahomedan law.

2. The Judge in the Court below has found entirely in favourof the defendants. He considers, that the execution both of the ikrarnama, andof the deed of gift has been clearly proved, and that there is no legalobjection to the validity of the deed of gift. He also finds, that the mocurrarito Babbun was a permanent lease, and he has dismissed the plaintiffs suit withcosts.

3. In this Court, the main contention has been withreference to the validity of the deed of gift, and we may say at once, that wehave not the least doubt as regards the execution of this deed, or as to KanizFatima being perfectly well aware of what she was doing when she executed it.

4. We think this appears very clearly from the plaintiffsown evidence.

5. It is no doubt very natural for the plaintiffs, who arenot in good circumstances, to struggle hard against an alienation of so largean inheritance, but on the other hand, we cannot fail to see that theprobabilities are greatly in favour of the gift, because it was only likelythat Kaniz Fatima, who had lived with Muleka (her daughter-in-law), and IrshadHossein on terms of affection and intimacy for many years, should do all shecould to secure to them her wealth, instead of allowing it to descend todistant relations, of whom she knew little or nothing.

6. The question therefore in this Court, so far as this deedis concerned, has been, whether having regard to the subject-matter of thegift, and the fact of there having been no actual partition made of it at thetime when the deed was executed, as between the two donees, the transaction isvalid in law as against the plaintiffs.

7. This question has been argued before us at some length,and we are much indebted to the learned Counsel on both sides for the painswhich they have taken to refer us to all the authorities upon the subject. Buthaving heard the matter fully argued, we are satisfied that the gift is valid,and that the conclusion at which the lower Court arrived is just.

8. The property which is the subject of the gift consists ofseveral zamindaries, and shares in zamindaries, let out to tenants and ryots,as such estates usually are; a good many lakheraj properties also let out totenants; several malikana rights of some value, and a variety of house propertyin Patna, and elsewhere, consisting of houses, sheds, roads, gardens, etc.

9. There is no satisfactory evidence as to how this latterproperty was occupied or utilized at the time when the gift was made.

10. The arguments on the part of the plaintiffs resolvethemselves into three main points:

(1st) That by Mahomedan law a gift cannot be made of landswhich are not in the possession of the donor, nor of incorporeal properties,such as rents, malikana rights, and the like; (2nd) that an undivided share ofa house or a zamindari cannot be made the subject of a gift; and (3rd) that agift to two persons without previous division and separation is invalid.

11. In dealing with these points we must not forget that theMahomedan law, to which our attention has been directed in works of veryancient authority, was promulgated many centuries ago in Bagdad, and otherMahomedan countries, under a very different state of laws and society from thatwhich now prevails in India; and that although we do our best here in suitsbetween Mahomedans to follow the rules of Mahomedan law, it is often difficultto discover what those rules really were, and still more difficult to reconcilethe differences which so constantly arose between the great expounders of theMahomedan law ordinarily current in India, namely, Abu Haniffa and his twodisciples.

12. We must endeavour, so far as we can, to ascertain thetrue principles upon which that law was founded, and to administer it with adue regard to the rules of equity, and good conscience, as well as to the laws,and the state of society and circumstances which now prevail in this country.

13. Having premised thus far, we think that the first of theabove points, although it has occupied some time in argument, may be veryreadily disposed of. In fact, it appears to us to have been already settled.

14. We have been referred to several authorities, and,amongst others, to Dorrul Mokhtar, Book on Gift, p. 635, which lays down thatno gift can be valid unless the subject of it is in the possession of the donorat the time when the gift is made. Thus when land is in the possession of ausurper (or wrongdoer), or of a lessee or mortgagee, it cannot be given away;because in these cases the donor has not possession of the thing which hepurports to give.

15. But we think that this rule, which is undoubtedly laiddown in several works of more or less authority, must, so far as it relates toland, have relation to cases where the donor professes to give away thepossessory interest in the land itself, and not merely a reversionary right init. Of course, an actual seisin or possession cannot be transferred, except byhim who has it for the time being.

16. It is possible, too, that these texts may be explainedby what we are informed was the law in Bagdad in early times with reference toland let on lease; we are told that an ijara lease, which in this country meansgenerally a farming lease of ryoti holdings, meant, according to the law ofBagdad, a lease of the land itself or its usufruct; and that the owner of landhaving made such a lease, could not by law transfer his reversionary interest,so as to give the transferee a right to receive the rent from the ijaradar.(See Futawa Alumgiri, vol. III, Book on Gifts, p. 521.)

17. Whether this is the real meaning of the authorities maybe doubtful; but it is certain, that such a state of the law in this countrywould render the transfer by gift of a zamindari and other landlords interestsimply impossible: lands here are almost always let out on leases of some kind,and there are often four or five different grades of tenants between thezamindar and the occupying ryot. What is usually called possession in thiscountry, is not actual or khas possession, but the receipt of the rents andprofits; and if lands let on lease could not be made the subject of a gift,many thousands of gifts, which have been made over and over again of zamindariproperties would be invalidated. If we were disposed to agree with this novelview of Mahomedan law, (which we are not), we think we should be doing a greatwrong to the Mahomedan community, by placing them under disabilities withregard to the transfer of property, which they have never hitherto experiencedin this country. Such a view of the law is quite inconsistent with severalcases decided by the Suddur Dew any Adawlut (under the advice of the Kazis),and also by this Court (see 1 Select Reports, 5, 12, and 115 note; 1 BombayHigh Court Reports, 157, 16 W.R. 88, and 12 W.R. 498); and it is directlyopposed to the case of Amirunnessa v. Abedoonissa 23 W.R. 208 decided by theirLordships of the Privy Council.

18. In that case a gift of large zamindaries was held to bevalid, although it is clear that they consisted, as such estates generally do,of tenures and interests of all kinds; no objection was then taken to the giftupon the ground that has been urged before us here, and indeed, so far as itappears, that point has now been taken for the first time.

19. Similarly, as regards the malikana rights, we are notaware of any reason, why rights of this description should not be made thesubject of a gift, in the same way as rents or other incorporeal property ofthat nature. We have already decided that reversionary interests, carrying withthem the right to receive rents, may be thus transferred; and it is clear thatdebts and Government notes and other choses in action, which give the partiesentitled to them the right to receive money from the Government or thirdpersons, may be made the subject of a gift.

20. A malikana right, is the right to receive from theGovernment a sum of money, which represents the maliks share of the profits ofa revenue paying estate, when, from his declining to pay the revenue assessedby the Government, or from any other cause, his estate is taken into the khaspossession of Government, or transferred to some other person, who is willingto pay the rate assessed. There is nothing in principle, so far as we can see,to distinguish a malikana right from a right to receive rents, or the dividendspayable upon Government paper.

21. The second and third points contended for by theplaintiffs, have reference to the doctrine of mooshaa under the Mahomedan law.It is urged: (1) that a gift of an undivided share in any property is invalidbecause of mooshaa, or confusion, on the part of the donor; and (2) that a giftof property to two donees without first separating and dividing their shares isbad, because of confusion on the part of the donees.

22. But it must be borne in mind that this rule applies onlyto those subjects of gift, which are capable of partition. See the Hedaya, vol.III, Book on Gift, p. 293, where the rule laid down is to the effectthat--"a gift is not valid of what admits of division unless separated anddivided." See also Bailees Mahomedan Law, 2nd Ed., p. 520; FutawaAlumgiri, Book on Gift, p. 521; Macnaghten s Mahomedan Law, p. 201.

23. The rule, therefore, applies only to gifts of suchproperty as is capable of division; whereas reversionary interests, ormalikana, or other choses in action, are not capable of division.

24. It is said that one main reason for this rule, whichapplies only to gifts, and not to sales, is to protect a mans heirs againstgifts made in defeasance of their rights. We were referred to certain textswhich apparently favoured that view, and it is also probable that anotherreason for the rule was to protect creditors against fraudulent gifts made bydebtors, it being a well-known test of the bona fides of a gift, whetherpossession of the thing given has passed to the donee.

25. It has been urged upon us very strongly, that accordingto this rule of mooshaa, the gift, which was made to the defendants in thiscase, is wholly void, because, the gift being of lands, no partition of suchlands was made; and even supposing the gift to be valid, as regards thezamindari properties which were let out on lease, it would still be invalid asregards the house property, gardens, sheds, etc., which are not shown to havebeen let out on lease, and which were capable therefore of actual partition.

26. We think, however, that this objection is not wellfounded, as regards any part of the property in question.

27. As regards the zamindaries, the estate of the donor, aswe have seen, was an interest in reversion, and the property which wastransferred by the gift of these zamindaries was merely that sort of estatewhich entitled the donees to receive the rents and profits. We find from theevidence of the defendants, (which was so clear upon this point that the Judgein the Court below desired to hear no more than that of the first twowitnesses), that during Kaniz Fatimas lifetime she and Muleka were in separatecollection of the rents, and that immediately upon the gift being made, thepossession was transferred, in the only way in which it could be transferred,to the two donees.

28. The Mussumat dismissed all her servants, and from thattime the tehsildars were employed and paid by the donees, and collected therents for them. An equal division was made between them of the rents collected;and, as regards part of the property, it appears that, from the year 1281, thecollections were made separately.

29. It is said, however, that as regards the house propertyno division of it has been proved, and that, for aught that appears, thatproperty might have been in the khas possession of the Mussumat; but no pointwas made of this in the Court below. No issue was framed for the purpose ofraising it, nor was there any evidence given on the part of the plaintiff, norany cross-examination of the defendants witnesses with reference to thatpoint; no distinction appears to have been made (either in the Court below, oreven in the grounds of appeal to this Court), between the different kinds ofproperty; and the strong probability is, that the house property which belongedto the Mussumat was let out in lease in the same way as her other properties.

30. We think, therefore, that we ought not to allow anobjection of this kind to prevail, or even to be raised, at this stage of thecase founded merely upon a conjectural distinction between these two classes ofproperty; and even if we thought otherwise, we certainly should not give effectto such an objection without sending the case back to the Court below, to havethe true state of things ascertained.

31. Upon the whole, therefore, as regards the deed of gift,we are of opinion that it effectually transferred to the donees the propertieswhich were detailed in the schedule to that deed.

32. It now only remains to deal with mouzah Morari which, aswe have seen, was granted under a mocurrari lease to Mussumat Babbun by NazirIbrahim Ali.

33. The plaintiffs admit in their plaint that MussumatBabbun executed a dur-mocurrari lease of this mouzah, on the 22nd of September1873, to the defendant No. 6, Moulvie Fuzul Hossein, and that, in thatdurmocurrari, she stated the lease to be a perpetual and heritable one;whereas, the plaintiffs case is that it was only for her life, and that asupon her death, on the 25th of October 1875, the mouzah reverted to IbrahimAlis heirs, the plaintiffs are entitled, as two of his heirs, to a share inthat mouzah.

34. On the other hand, the defendant No. 6, alleges that themocurrari granted to Babbun was a permanent and heritable one; and he has filedand produced the mocurrari lease itself, which he says was given to him byBabbun at the time when he obtained his dur-mocurrari.

35. The Court below has also found against the plaintiffsupon this point; and the only difficulty we have had upon this part of the casearises from the somewhat loose way in which the mocurrari lease has been provedin the Court below.

36. It appears from the petition of the defendant No. 6,dated the 20th of September 1881, that he filed this mocurrari lease in Court;and that it was duly registered.

37. The deed appears to have been admitted by the Courtbelow, and no objection has been taken in the grounds of appeal that it wasimproperly admitted. It has been sent up here with the record; and it has beenproduced and examined before us in this Court.

38. It is argued by the plaintiffs that this is not the realdeed which was granted to Babbun; and they say that the real deed was one forlife only, but they have given no proof of this.

39. It is, of course, an admitted fact on both sides thatthere was a mocurrari deed of some kind duly executed by Ibrahim Ali to Babbun.

40. The deed, which is now in evidence was duly filed andproduced at the trial by the defendant No. 6, as being the deed given to him atthe time when he obtained his dur-mocurrari.

41. The Judge has found this to be the deed which wasgranted by Ibrahim Ali to Babbun; and there is no doubt that this deed doesconfer a permanent and heritable mocurrari.

42. We see no reason to believe that the finding of thelearned Judge is otherwise than correct. If he made a mistake at all, it was inreceiving the deed in evidence without examining Fuzul Hossein, who appears tohave been in Court, or requiring some further or other proof of its identity.

43. But there is no point of this kind taken in the groundsof appeal; and, if we considered that there was any weight in the objectionsnow made by the appellants, we should certainly not give effect to them,without sending the case back to the Court below to examine Fuzul Hossein andhis witnesses; because the Judge thought his case so clear as to this deed,that he told him it was unnecessary to call any witnesses.

44. We therefore decide the case on all points against theappellants.

45. The only remaining question is as to the costs.

46. We find that in the Court below the defendants Burkutand Zukiran were allowed their full costs, and that Ali Hossein, who was apleader, and who apparently had nothing to do with the case, was also allowed aseparate set of coats.

47. The ground on which Ali Hossein was allowed these costs,was that he was said to have made an arrangement with the plaintiffs by whichthe plaintiffs were enabled to carry on the suit; and part of the arrangementwas, that in the event of the plaintiffs succeeding, Ali Hossein should beentitled to a share in the property.

48. Under these circumstances, the plaintiff desired thatAli Hossein should be made a defendant. But Ali Hossein himself disclaimedhaving anything to do with the arrangement, or having any share in property.

49. Why, under these circumstances, he should have beenallowed such a large sum for costs we cannot understand, nor do we understandwhy Burkut and Zukiran (who were merely made defendants, because their nameswere said to have been used in making the arrangement, instead of that of AliHossein) were also allowed their full costs, because their interests, if theyhad any, were precisely the same as those of Ali Hossein, and any contentionwhich they might have raised, must have been in the same interest as that ofAli Hossein.

50. We think that the only sum which ought reasonably tohave been allowed to them would merely be one for their first appearance inCourt; instead of the fee therefore which has been allowed by the Court below,we allow only Rs. 100 to Ali Hossein, and alike sum to the other two plaintiffs[defendants.]

51. As regards the costs of the principal defendant, wethink that the defendant No. 6, whose contention was of an entirely differentcharacter from that of the others, should have his costs of the appealproportionate to the value of his dur-mocurrari, and that the other defendantsshould get their costs upon the balance.

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Mullick Abdool Guffoor and Ors. vs. Muleka and Ors.(22.07.1884 - CALHC)