Jaspreet Singh, J.

1. The instant first appeal has been filed by the defendants/appellant under Section 96 CPC against the judgment and decree dated 06.04.1977 passed by the Ist Additional District Judge, Bahraich in Regular Suit No.14 of 1973 whereby the suit for eviction and damages for use and occupation has been decreed in favour of the plaintiffs/respondents. For the sake of convenience this Court shall refer to the parties as impleaded in the trial court.

2. The brief facts giving rise to the instant appeal are being noticed herein after:-

3. The plaintiffs [respondents herein] instituted a suit against the defendants Noor Ahmad and Shamshuddin [appellant before this Court] for eviction from a shop, godown and upper portion of the disputed house in question and also for a decree of damages for wrongful use and occupation.

4. The case of the plaintiffs was that their father Quadir Mian had gifted the property in question to the plaintiffs by means of registered gift deed dated 20.04.1967. In terms of the said gift deed the plaintiffs have the title to the same and since the defendants who are their step brothers (sons of Quadir Mian from his first wife) who requested the plaintiffs to permit them to continue with their occupation in the disputed property for sometime and they promised to vacate the same and later as they refused to do so, hence the plaintiffs treating the defendants as licencees terminated their licence and issued a notice for vacation of the premises which was not complied with and thus instituted the suit seeking decree of eviction as well as damages for wrongful use and occupation. Significantly, the plaint also contained a map indicating the portion which was in the possession of the plaintiffs and the defendants respectively.

5. The defendants filed their written statement and contested the suit on the premise that the property in question belonged to Barati Mian, the grand father of the defendants (father of Quadir Mian). As Barati Mian was aware of the fact that after Quadir Mian had re-married, his relations with his children from the first marriage was not cordial, hence in order to protect and secure the rights of the children from the first marriage of Quadir Mian, Barati Mian had gifted the property to the defendants and as such they claimed their title over the same and that for the said reason the plaintiffs could not seek their eviction nor could seek damages for wrongful use and occupation.

6. The trial court on the exchange of the pleadings framed five issues which read as under:-

"(1) Whether the property in suit belonged to Mohd. Quadir Mian as alleged by the plaintiffs if so did he make a gift of the property to the plaintiffs

(2) Whether the property in suit belonged to the father of Quadir Mian and he made a gift in favour of the defendants and his brother Badruddin as pleaded in para-17 of the written statement

(3) Whether the suit is bad for non-joinder of Badruddin

(4) Whether the suit is not within time

(5) Whether the defendants have become owners by adverse possession"

7. The trial court considering oral as well as documentary evidence, by means of its judgment and decree dated 06.04.1977, decreed the suit against the defendants awarding possession to the plaintiffs over the disputed portion shown by blue colour in the map annexed with the plaint and also permitted the plaintiffs to recover a sum of Rs.2700/- as damages for the wrongful use and occupation of the premises from the defendants, at the rate of Rs.75/- per month. The same rate was also granted for pendente lite and future damages. It is in the aforesaid backdrop that the defendants/appellants have filed this first appeal.

8. Shri Mohd. Arif Khan, learned Senior Counsel assisted by Shri Mohd. Sadab Khan and Shri Mohd. Aslam Khan for the defendants-appellants has raised the following submissions:-

(i) It is urged that the trial court has erred in failing to frame an issue on the point of licence; inasmuch as it was the plaintiffs' case that the defendants were the licencee and their licence was terminated. However, neither any such evidence was led and even other wise in absence of any proper pleading and issue on the said point, the evidence in this regard could not have been appreciated which has resulted in sheer miscarriage of justice.

(ii) It is also urged that the controversy revolved around the alleged gift which is said to have been made by Quadir Mian in respect of the disputed property in question. It is stated that Quadir Mian could not have executed the gift for the reason that he had no exclusive title to the same. The property in question was purchased by Barati Mian and Quadir Mian and unless there was a partition or a division by metes and bounds the gift could not have been made in respect of an undivided portion as a gift of Musha (undivided) is bad in law. It is further urged that one of the essential ingredients of a gift is the acceptance by the donnee as well as the handing over the possession. It is urged that the evidence would suggest and as admitted to the plaintiffs the possession remained with the defendants and since possession was not handed over to the plaintiffs, hence the gift was void and against the principle as enunciated in Muslim Law relating to a valid gift.

9. Shri Durgesh Pathak and Shri Sarashwat Srivastava, learned counsel for the plaintiff/respondents have vehemently opposed the aforesaid submissions and have argued as under:-

(i) The issue of licence is not material in the sense that the plaintiffs had claimed title to the property on the basis of a gift deed executed and registered by Quadir Mian in their favour. Once Quadir Mian had divested himself of all his rights from the property and handed over the same to the plaintiffs-respondents, who accepted the same being its owner, the defendants-appellants who were residing in the premises, being the step brothers of the plaintiffs, thus their occupation in the premises was merely permissive and it is in this context that their lience to remain was terminated and a decree of eviction and damages has been sought. The parties had gone to trial knowing the case of each other with full knowledge and led the evidence in support of their respective case and it was primarily a battle of title between the parties.

(ii) Issues no.1 and 2 which were framed by the trial court were seminal to the entire dispute and the consideration of licence was inbuilt in the issues already framed. Even otherwise, no effort was made by the defendant at any stage of the proceedings, during trial, to get an additional issue framed and as such only to delay the proceedings and the execution of the decree the aforesaid issues has been raised during arguments as no application under Order 14 Rule 5 CPC was made before the court through the appeal is pending since 1977.

(iii) It is also urged that the property in question was that of Quadir Mian who had got the same in a family division which took place between Quadir Mian, his brother Saffi-ul-laha and sister Mst. Momkoma. One other portion of the property in dispute was purchased by a registered sale deed by Quadir Mian exclusively and it is thereafter that the entire property which was got in terms of the division as well as the one portion purchased, was gifted to the plaintiffs by means of the registered gift deed and the plaintiffs being its exclusive owners and in possession of large portion have a right to seek the eviction of the defendants as well as claim damages for wrongful use and occupation of a limited portion shown by blue coloured lines in the map forming parting of the plaint.

(iv) It is urged that the ground raised for assailing the gift of the plaintiffs is not quite valid; inasmuch as the possession was with the plaintiffs and merely because in some portion the defendants were having their permissive possession, it would not mean that the gift gets void on account of mere permissive occupation of the defendants and gift being in the nature of Musha of an undivided portion would be void.

(v) It is also urged that the defendants were in the premises in question as permissive occupants and not in their own property rights, hence their possession even during the time of Quadir Mian was with the permission of Quadir Mian who gifted the property to the plaintiffs and thus the title of the plaintiffs on the basis of the gift does not get affected in any manner.

(vi) It is further urged that the defendants were not able to establish the alleged gift said to have been made by Barati Mian as they were various discrepancies in the testimony of the witnesses who sought to explain and establish the said gift. The defendants could not even give a date on which the gift was made nor there was any overt act which could indicate that the defendants had accepted the gift and they were put in exclusive possession. Even otherwise, if the reason for which the defendants are assailing the validity of the gift of the plaintiffs then for the same reason, the gift of the defendants also gets fouled and apart from the above the denfendants have not been able to prove their gift by any cogent evidence and thus the appeal deserves to be dismissed.

10. In the aforesaid backdrop, the primodial controversy and the issue important for deciding the instant first appeal, is dependent on the outcome of the two rival gifts, which have been set up by the appellants and the respondents. The core issue is that in case if the gift said to have been made by Barati Mian is found to be established, then apparently it will impact the right of Quadir Mian to have executed the registered gift deed in respect of the entire property.

11. Significantly, both the appellants and the respondents, who are step brothers, have set up rival claims based on gift and one denies the gift of the other and in the aforesaid context, the original memorandum which is said to have been executed by Barati Mian referring and acknowledging the gift said to have been made by him in favour of the defendants assumes significance.

12. The instant appeal was nominated to this Court and the hearing on the appeal was commenced on 27.04.2023. The matter was heard on various dates and the judgment was reserved on 11.05.2023. However, at the time of dictating the judgment the Court found that there were number of applications which were pending in terms of Order 41 Rule 27 CPC. The Court further noticed that some of the applications had already been allowed by the Court and the impact of allowing the applications was that the documents which were filed in terms of Order 41 Rule 27 CPC also had to be examined and therefore this Court after noticing the previous orders passed by the Court on 04.03.2005, 08.02.2007, 18.04.2007, 02.11.2007 and 11.12.2017 sumrised the effect of the said orders passed vis a vis the applications under Order 41 Rule 27 CPC and passed a detailed order dated 22.05.2023. The relevant portion of the order dated 22.05.2023 is being reproduced herein after for ready reference:

"20. It is in the aforesaid backdrop where both the appellants and the respondents, who are step brothers, have set up rival claims based on gift and one denies the gift of the other and in the aforesaid context, the original memorandum which is said to have been executed by Barati Mian referring and acknowledging to the gift said to have been made by him in favour of the defendants becomes a vital document which is of immense importance for deciding the controversy completely between the parties. A set of 21 documents have also been filed by the appellants in order to buttress their contentions regarding their rights to retain the property on the basis of the gift executed by Barati Mian.

21. In the aforesaid backdrop as well as noticing that this Court is exercising its powers under Section 96 CPC where this Court has to adjudicate decide the appeal with powers almost co-extensive as that of a trial court where all issues of fact and law which arises between the parties are open to be agitated and decided. This Court is also conscious of the wide power it yields coupled with the fact that this Court is extremely pained to notice that the instant first appeal has been engaging the attention of this Court since 1977 and though orders had been passed from time to time which have been reproduced herein above, relating to taking the documents on record, but unfortunately the same were not taken to its logical conclusion at the appropriate time.

22. It is for the aforesaid reasons that the Court has heard the learned counsel for the parties on various dates at length to ascertain whether the said documents would be relevant and after having considered this Court is of the opinion that to decide and clearly opine regarding the respective claims of the parties based on the two rival gifts, it will be necessary for the Court to permit the parties to lead evidence and prove their documents which have been placed and taken on record.

23. This Court in exercise of powers under Order 41 Rule 23-A can remand the matter permitting the parties to lead evidence on the documents which have been taken on record but considering the lapse of time and that 40 years have gone by without any effective adjudication, therefore, this Court keeps the instant appeal pending. However, this Court in exercise of its powers under Order 41 Rule 25 read with Section 151 CPC remits the matter to the District Judge, Bahraich for the limited purpose to permit the parties to lead evidence only in respect of the documents which were filed alongwith the C. M. Application No.256 of 1984 and were permitted to be taken on record in terms of the order passed by the Court on 04.03.2005 and on the memorandum which was taken on record by the Court in terms of order dated 11.12.2017. The appellants shall not be permitted to introduce any other new evidence except as provided in this order.

24. Since the matter is being remitted for the limited purpose as mentioned above, accordingly a limited opportunity is granted to the respondents that in case if they so choose, they may file their documents in rebuttal upto but not later than 3rd July, 2023 and if they so do, they shall be permitted to lead evidence to that limited extent only and nothing beyond that and subject to the objections of admissibility of any such document."

13. It is in the aforesaid factual backdrop that the District Judge Bahraich before whom the evidence was led has remitted the record back and it was placed before the Court after the evidence was recorded. Thereafter this Court once again heard the matter on 16.08.2023 and 17.08.2023 where after the judgment was reserved.

14. In light of the facts as well as the submissions made by the learned counsel for the parties, the Court frames the following points for determination:-

(i) Whether the defendant/appellant were prejudiced while contesting the case before the trial court merely on account of non-framing of an issue on licence and was unable to lead evidence which has vitiated the judgment under challence

(ii) Whether the alleged gift said to have been made by Barati Mian is valid and has been proved in accordance with law

(iii) Whether the gift deed executed by Quadir Mian dated 20.04.1967 and a supplementary deed dated 17.08.1967 are valid and have been proved in accordance with law and its effect

15. The Court has heard the learned counsel for the parties and also perused the record.

Point No.1.

16. This point of determination is in view of the submissions made by the learned Senior Counsel for the appellants that the plaintiffs in their pleading had stated in paragraph-6 that the plaintiffs had cancelled the licence of the defendants in respect of a shop, godown and a portion on the first floor by means of notice dated 12.01.1968. It is further urged that the theory of licence was specifically denied by the defendants by filing their written statement. It is urged that since the case of a licence was set up by the plaintiffs which was denied by the defendants, consequently the trial court ought to have framed an issue on licence. Since no such issue was framed, the defendants were unable to lead appropriate evidence and further the defendants were prejudiced to establish that the defendants were the owners and not the licensee of the premises in question.

17. Controverting the aforesaid submissions, it is urged by the counsel for the respondents that the plaintiffs became the owners of the property in question by virtue of a gift deed executed by their father, namely, Quadir Mian and since they were in possession and the defendants did not have right over the same but they continued to remain in occupation and in permissive occupation, hence the appellants were only a licensee and thus for the said reason there can be no prejudice for the defendants and as such the aforesaid plea has no legs to stand and must fail.

18. In so far as the instant issue raised by the appellant is concerned, the Court has considered the submissions and from the perusal of the record, it would indicate that the case of the plaintiffs was very clear that the property in question belonged to Quadir Mian who had got some part from his father, namely Barati Mian and another part of the property in question was purchased by Quadir Mian by means of registered sale deed from Laxmi Narain and Saligram. It was thus stated that Quadir Mian had executed registered gift deed in favour of the plaintiffs/respondents on 20.04.1967 and since then they are the owner in possession of the property in suit. The plaintiffs further stated that since the defendants were the step brothers of the plaintiffs and after the gift being made in favour of the plaintiffs, the status of the defendants was that of a licensee so they were in possession at the pleasure of the plaintiffs on licence and since the plaintiff did not want the defendants to continue , accordingly the licence was cancelled and they were required to hand over the possession to the plaintiffs.

19. The defendants on the other hand while refuting the aforesaid contention has specifically stated that they are the owner in respect of the property in question, as Barati Mian who was the grand father of the parties, had made an oral gift in favour of the defendants and thus on the basis of the said oral gift which was prior to the gift deed made by the Quadir Mian, hence the defendants were in possession as owner and not as the licencee.

20. If the question, raised by the appellants, regarding non-framing of an issue regarding licence is seen in context with the pleadings of the parties as noticed above, it would indicate that apparently the property in question as per the platintiffs was of Quadir Mian whereas as per the defendents it belonged to both Barati Mian and also Quadir Mian.

21. The plaintiffs claim ownership on the basis of gift deed executed by Quadir Mian dated 20.04.1967 and on the other hand, the defendant claim ownership on the basis of an oral gift made by Barati Mian. Thus, both the parties are claiming title over the property on the basis of the gift deed as mentioned above. In case if the gift deed of the plaintiff is upheld and the gift made in favour of the defendants is not proved the ultimate effect would be that since the ownership of the defendants would be negatived and since they were occupying the same since the time of their father Quadir Mian, hence their occupation therein would be permissive in nature which is akin to a licence and it is in this context that the pleadings of the respective parties indicated how the plea of licence was understood by them.

22. The parties were primarily engaged in the litigation claiming their respective title on the basis of the two gift deeds. They had led their evidence on the basis of issues which were framed by the trial court and it would be seen that the issue nos.1 and 2 which encapsulated the entire controversy hence non-framing of the issue of licence has no meaning; inasmuch as it is squarely dependent on the issue as to whether the plaintiffs were successful in proving their gift or the defendant succeeded in proving their gift as it was a contest of title between the parties. Once the parties had led evidence knowing fully well the case they had to meet and especially in light of the dispute involved between the parties, the issue of licence, really speaking was not of much importance, rather upon decision rendered on title, the status of the defendants would be then considered as that of a coowner or that of a permissive occupant/licencee.

23. Be that as it may, the defendant if aggrieved by non-framing of the issue could have moved an application before the trial court to get an additional issue framed. However, the same was not done even before this Court once the hearing had commenced in the month of April, 2023 and lot of emphasis was laid on the applications under Order 41 Rule 27 CPC but at no point of time, during the pendency of the instant first appeal since 1977 the defendant-appellant made any effort to get an additional issue framed and explain how the defendant were prejudiced by non-framing of the said issue and even before this Court, learned Senior Counsel for the appellant could not convince the Court as to how the issue of licence was germane so much so that its non-framing would impact the trial and the rights of the parties especially when both parties were claiming their respective title.

24. Apparently, what this Court finds is that both the parties i.e. the plaintiff as well as the defendant are the sons of Quadir Mian. The plaintiffs are the sons of Quadir Mian from the second wife whereas the defendants are the sons of Quadir Mian from his first wife. The relationship between the plaintiffs and the defendants is that of step brothers and both of them have been occupying the disputed premises including were doing their business since the time of Quadir Mian. Thus, the occupation of both the plaintiffs and defendants during the life time of Quadir Mian was permissive and the status only changed once the plaintiffs claimed title over the property on the basis of gift deed executed by Quadir Mian in favour of the plaintiffs on 20.04.1967 and on the other hand, the defendants claimed title on the basis of gift deed made by Barati Mian in their favour. Thus, the issue of licence was not significant at all and its non-framing had no impact and thus for the aforesaid reasons this Court does not find that there is any substance in the submissions of the learned Senior Counsel for the appellant and is accordingly turned down.

Points No.2 and 3.

25. The core issue is the title to the property as claimed by both rival parties on the basis of their respective gift. The actual controversy hinges around the aforesaid two questions i.e. to say whether the gift deed executed by Quadir Mian in favour of the plaintiffs would prevail then the plaintiffs would be the owner in possession of the premises and on the basis of title, they would be entitled to seek the possession from the portion occupied by the defendants. On the other hand, in case if the gift deed executed by Quadir Mian in favour of the plaintiffs failed and without anything more or less then necessarily the property would have to devolve on the basis of the succession as applicable to the parties as per their personal law. The other aspect is that in case if the defendants are able to prove their gift then the impact would be that they would be the title holder of the premises only in respect of the portion which was gifted by Barati Mian to them and for the remaining part the parties would be governed by succession. It is in this context, that the issue of gift set up by the plaintiffs and the defendants assume significance.

26. This Court has to ascertain whether the gift executed by Quadir Mian was valid or whether the gift in favour of the defendants made by Barati Mian is valid and duly proved. In order to answer the aforesaid issue, the basic pleadings and the evidence led by the respective parties would necessarily have to be perused.

27. The record indicates that the plaintiffs in paragraph-3 laid the foundation of the gift deed in their favour and in paragraph-5, it was stated that with the consent of the plaintiffs, the defendants continued to work in the premises and one portion on the first floor was utilized by them for residential purposes. It was further pleaded that the plaintiffs revoked the licence by means of notice dated 12.01.1968 and since the defendant did not comply, hence they filed the suit alongwith the site-plan annexed indicating the areas which were in the occupation of the defendants from which they were to be evicted.

28. In the written statement, the defendants denied the allegation and stated that the father the plaintiff, namely, Quadir Mian did not have the right to execute the gift deed. It was also stated that Barati Mian the grand father of the parties had also made a gift in favour of the defendants and as such they were the owner. This was specifically stated in paragraph-17 of the written statement. The defendant also feebly raised a plea of adverse possession.

29. The plaintiffs filed their replication wherein it was stated that Quadir Mian was the exclusive owner of the property having purchased the same from Laxmi Narain and some part of the property was inherited from Barati Mian. The father of the plaintiffs had full right to execute the gift deed. It was also stated that Quadir Mian after obtaining the necessary permission from the Municipal Board had made renovation and it was the fund belonging to Quadir Mian which were utilized in the property in question.

30. In order to prove its case, the plaintiffs examined five witnesses, namely, Jang Mohammad, Uma Shankar (these two were the witnesses of the gift deed) P.W.3 the plaintiff no.2 examined himself. P.W.4 was Maqsood Ali who was examined to establish the possession of the plaintiffs and P.W.5 Aziz Ahmad who was produced to identify the signature of Munsi Niyamat Ali.

31. On the other hand, the defendants in order to prove their case examined Noor Ahmad as D.W.1, Sajjad as D.W.2 who was the witness of the gift made by the Barati Mian. Ramjan Ali was examined as D.W.3 to corroborate the factum of gift made by Barati Mian in favour of the defendants and Mohammad Ali was examined as D.W.4.

32. The parties also filed documentary evidence to prove their respective case.

33. The learned Senior Counsel for the appellant attacked the gift executed by Quadir Mian in favour of the plaintiffs on the following counts:-

(i) Quadir Mian was not the exclusive owner of the property, hence he could not execute the gift deed in favour of the plaintiffs in respect of undivided property. It was also submitted that it was incorrectly alleged by the plaintiffs that Quadir Mian was exclusive owner of the property; inasmuch as from the perusal of the sale deed executed by Laxmi Narain and Saligram in favour of the Quadir Mian dated 16.07.1954 it would indicate that it was executed jointly in the names of Baratai Mian and Quadir Mian.

(ii) It is further stated that the basic ingredients of gift as per the Muslim Law was not satisfied; inasmuch as there ought to be first a declaration of gift by the donor which is followed by the acceptance made by the donee and the third crucial ingredient was the delivery of possession.

(iii) It is further urged by the learned Senior Counsel that there was no delivery of possession nor the same could be satisfied by evidence on record and most importantly the gift of an undivided property cannot be made as there are certain restrictions in respect of gift of an undivided/indivisible property and such a gift of 'Musha' is not recognized as valid in the Muslim Law and for all the aforesaid reasons, the gift deed as set by the plaintiff was not proved and the findings returned by the trial court does not take note of the concept of Musha which rendered the gift void and thus in view thereof the gift deed as sought to be relied upon by the plaintiff was not proved nor any right could be conferred upon the plaintiffs, hence the same was liable to be ignored and since the suit of the plaintiff was based on title derived from gift deed which was void, hence the suit was liable to fail and this aspect has not been considered by the trial court.

34. Taking his submissions forward, learned Senior Counsel has pointed out that on the contrary it was clearly established that Quadir Mian who after the death of his first wife had re-married and thereafter the plaintiffs were the children of Quadir Mian from his second wife and the defendants, who are the children from the first wife, their relations were not cordial and since Barati Mian being the grand father wanted to secure the future of his grand sons who were being neglected by Quadir Mian and his second wife, hence he made a gift of his share in the property in favour of the defendants and as such this aspect has not been appropriately considered by the trial court despite the fact that various documents were also filed by the defendants to indicate that the property in question was joint between Quadir Mian and Barati Mian. The defendants had examined Noor Ahmad as D.W.1 who was the defendant no.1 himself. D.W.2 Sajjad who was the witness of the gift and Ramzan Ali as D.W.3 also to corroborate the factum of the gift and Mohammad Ali was examined as D.W.4 to establish that in pursuance of the gift the defendants were in possession.

35. It has also pointed out that in pursuance of the order passed by this Court dated 23.05.2023 the defendants also led evidence to prove the memorandum of the gift deed which was reduced in writing by Barati MIan and it was proved through the evidence of Sirajuddin. In light of the aforesaid evidence, the gift of the defendant stood proved while the gift of the plaintiff was void being in respect of an undivided property, where possession was not transferred to the plaintiff exclusively hence the suit could not have been decreed and was liable to be dismissed.

36. In light of the aforesaid submissions and in order to test the veracity of the submissions of the rival parties, it will be necessary to first notice the concept of a gift under the Muslim Law. A gift under the Muslim Law is known as Hiba. All muslim men and women to which ever school they belong, they can gift the whole of their property to whosoever they want. The essential condition for a valid gift are that there must be a declaration made by the donor that he is making a gift, this is followed by formal acceptance by the donee and the most crucial aspect is the delivery of possession to the donee.

37. It will also be relevant to notice that under the Muslim Law, a gift can also be made orally and in such a case it is not required to be reduced in writing. However, in order to prove such a gift, delivery of possession assumes great significance. Certain overt acts must be proved in respect of an oral gift which could reasonably lead to a conclusion that the donor had divested himself from the property gifted and that the donee having accepted the same dealt with the property as his own. As a matter of rule, the delivery of possession is necessary in case of a gifted property. However, there may be a certain situation where the delivery of possession can be symbolic or constructive. Illustratively in a case where the property in question is tenanted though the actual possession may not be handed over to the donee but by handing over the title deeds with instructions of attornment of the tenancy, information conveyed to the tenant that the rent would henceforth be collected by the donee would suffice and in such a situation, it cannot be said that the gift is bad for want of delivery of possession. There are certain other circumstances where the actual delivery of possession may be diluted especially where the gift is between the spouse inter se, gift made by the parents to the children amongst others. In so far as a gift to a minor is concerned, it will suffice if the guardian of a minor accepts the gift on behalf of the minor.

38. Since the learned Senior Counsel has urged that the gift in respect of an undivided property is void and has submitted that such a gift of Musha is not valid. Hence, in order to understand the aforesaid concept, it will be relevant to examine and ascertain what is a gift of 'Musha'.

39. "The term 'Musha' has been derived from the Arabic word which refers to Shuyua which actually means ‘confusion’. It means, Musha the ‘undivided part’ or share, which could also be a common building or land. As a gift of a part of a thing which is capable of division is not valid unless that particular part is divided off and separated from the property of the donor, however, the gift of an indivisible thing is absolutely valid.

40. In Muslim law, Musha signifies an undivided share in joint property. Musha is thus, a co-owned which is also the joint property. Moreover, if one of the several owners of that particular property makes a gift of their own share, there may be a confusion regarding the matter that which part of the property has to be given to the donee. In other words, there could be a real difficulty in delivering the possession of the gift if it is of a joint property which is made by a donor without partition of that gifted share.

41. In order to avoid such confusions and difficulties in the stage of delivery of possession, the jurists pertaining to the Hanafi law have evolved the principle of Musha where the matter of a gift is co-owned or joint property, the doctrine of Musha becomes applicable for examining the validity of that particular gift. The doctrine is strictly confined to the rules by the interpretation made through judicial precedents and has been cut down in a considerable manner.

Musha which is indivisible:

42. The Gift of Musha indivisible is valid. There are some of the properties which are by its very nature indivisible. The physical partition or the division of those properties is not practical. Moreover, if it is against the nature of such properties, their partition or division is affected at all and hence their identity is lost entirely, they do not remain the same properties which they were before the partition. For instance; a staircase cannot be divided as Musha properties. Where a staircase is jointly owned by, for instance, two persons, then each being the owner of half of the stair-case, is entirely entitled to make a gift of his or her share, but, if the stair-case is divided into two parts, it would either be too narrow to be used by anyone, or the upper half may come in the share of one and the other lower half is in the other’s share hence, in both the cases the staircase would become useless for both of them and also for the donee as well.

Musha which is divisible:

43. In the Hanafi law, the gift of Musha of the divisible property is termed to be irregular that is fasid if made without partition, however, a co-owned piece of land, house or a garden, is Musha which is divisible. The land can be divided and the specific share can be separated by a visible mark of identification. Similarly, a house which is jointly owned may be divided by a partition wall without changing its entire identity. However, under the Hanafi doctrine of Musha, the gift without partition and the actual delivery of possession is not void ab initio; it is merely irregular which means fasid. The result is that where such a gift has been made, it may be regularized by the successive partition and by giving to the donee the actual possession of the specified share of the property. It is clearly evident that the doctrine of Musha is limited, both in its application as well as in its effects.

44. Having considered the aforesaid concept of the gift of Musha at this juncture, it will also be relevant to notice certain decisions which throw light on the aforesaid issue. In Hayatuddin Vs. Abdul Gani and others 1974 SCC OnLine Bompay 35. The issue posed for consideration was whether the gift deed in favour of Hayatuddin was valid as the property in question was enjoyed by tenants in common and the property which was gifted to Hayatuddin, the possession not having been delivered whether such a gift would be valid. Learned Single Judge of Bombay High Court considered the aforesaid question and in paragraph 97, it considered the law relating to the gift of an undivided property under the Muslim Law and thereafter held as under:-

"3........... Questions posed for consideration by the lower ap pellate Court was whether the gift deed in favour of Hayatuddin was valid. It, however, took the view that since delivery Of possession was one of the two pre requisites of a valid gift and properties which were enjoyed by tenants-in-com mon were incapable of being placed in possession and it held that the property which was gifted to Hayatuddin not having been divided at the time when the gift was made it could not be valid. The Question whether the present gift could be considered as one of undivided share was disposed of by the learned Judge by observing:

“A portion of an undivided property may be gifted to a co-owner also under certain circumstances but that is not the case here.”

4. It is therefore, apparent from the judg ment that the validity of the gift consi dered by the lower appellate Court was only with reference to the fact that the property not having been partitioned prior to the suit of 1955 there could not be delivery of possession by Rashidbi and Amnabi in favour of Hayatuddin, The present appeal has been filed by the plain tiff challenging the iudgment of the lower appellate Court. Now, the learned counsel ap pearing on behalf of the defendants was not in a position to dispute the fact that there was no finding by the Court which decided the earlier suit with regard to the validity of the gift. When it was con tended on behalf of the appellant that the gift made by the two donors in favour of the present plaintiff was in respect of an undivided portion i.e. ⅞ths share owned by Rashidbi and Amnabi, it was urged on behalf of the defendants that the trial Court had in the earlier suit found that there was no partition at which the pro perty was divided into two shares, one belonging jointly to Rashidbi and Amnabi and the other to Makboolbi, and that the trial Court had also found that possession was not given and the logical infer ence from these two findings, therefore, would be that the gift was invalid and even though expressly no finding was ar rived at by the learned Judge of the trial Court in the earlier suit, such a finding must be read in the judgment with the result that the validity of the gift deed could not again be adjudicated upon in the present suit. It is difficult to accept the contention that though no finding has been reached by the trial Court in the earlier suit that the gift was invalid, the judgment in that suit must be read as leading to that inference and it must be assumed that that finding was given and consequently the validity of the gift could not be put in issue in the present suit. Such a course would be contrary to the established principles under Section 11 of the CPC which con templates primarily an issue which is decided in the earlier suit and an issue on which Parties have gone to trial nut ting certain matters directly and sub stantially in issue. A reference to Expla nation IV to Section 11 would also not be of any assistance to the defendants be cause Explanation IV refers to a nlea which might or ought to have been taken as a ground of defence or attack in the former suit and which has not been raised. What the learned counsel, however, wants to be done is that the finding is to be read as having been given because that is the natural inference which, according to him, follows from the two findings recorded with regard to partition and possession.

**********

"7........... The law relating to the gift of undivided property under Mohammedan Law is put in two Parts in paragraphs 159 and 160 of the Principles of Mahammedan Law by Mulla 17th Edition. It is stated:

“159. Gift of mushaa where property indivisible. A valid gift may be made of an undivided share (mushaa) in property which is not capable of partition.

160. Gift of mushaa where property divisible. A gift of an undivided share (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 deli very to the donee of the share given to him. If possession is once taken the gift is validated.”

8. How delivery of possession of immovable property can be given is explained in paragraph 152. It contemplates three kinds of cases (1) where donor is in possession (2) where property is in the oc cupation of tenants; and (3) where donor and donee both reside in the property. There is evidence in this case to show that part of the property was in the occupation of tenants and plaintiff Hayat uddin was already residing in a part of the property. A gift of immovable property which is in the occupation of tenants may be completed by a request by the donor to the tenants to attorn to the donee; and where the donor and the donees both re side in the property no physical departure or formal entry is necessary in the case of a gift of immovable property in which the donor and the donee are both residing at the time of the gift and in such a case according to Mulla, the gift may be com pleted by some overt act by the donor indicating a clear intention on his part to transfer possession and to divest himself of all control over the subject of the gift."

45. Bombay High Court also relied upon a Division Bench of the Allahabad High Court in Hamidulla Vs. Amat Ulla AIR 1936 Allahabad 473 and it further went on to consider the decision of the Privy Council in Sheikh Muhammad Mumtaz Ahmad Vs. Zubaida Jan 16 Indian APP 205 Privy Council this was noticed as under:-

"8. ..................a Division Bench of the Allahabad High Court in Hamid Ullah v. Ahmad Ullah. (AIR 1936 All 473) [LQ/AllHC/1936/30] . In that case the property consisted of six houses and three parcels of land and the donor who was not in physical but construc tive possession of the property, executed a deed of gift and sot it registered. The document recited that the donor was in proprietary possession of the property and was conveying to the donee the same sort of possession which she possessed, that she had given UP all proprietary rights in the subject-matter of the gift and that the donee was at liberty to make trans fers of the property in any way he chose. The Division Bench held 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 donees the same possession as she had herself. In view of the speaking con duct of the donors it is difficult to hold in this case that possession of undivided share of the donors was not transferred by them to the present plaintiff.

9. I might refer with advantage to the observations made by the Privy Coun cil indicating how the doctrine relating to invalidity of sift of mushaa was un adapted to a progressive state of society. In Sheikh Muhammad Mumtaz Ahmad v. Zubaida Jan, ((1888-1889) 16 Ind APP 205) (PC) Sir Barnes Peacock, speaking on be half of the Board, has observed:

“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 refer red to show that possession taken under an invalid gift of mushaa transfers the property according to the doctrine of both the Shiah and Soonee Schools, see pages 79 and 85. The doctrine relating to the invalidity of gifts of mushaa is wholly un adapted to a progressive state of society and ought to be confined within the strictest rules."

46. This Court in S. K. Aftab Husain and another Vs. Smt. Tayabba Begam and another 1972 SCC OnLine All 373 also had the occasion to consider the issue of a gift made with constructive possession. In the said case while considering the principles of Mahomedan Law by Mulla. The Court held as under:-

"6. ...............Now Mulla in his Principles of Mahomedan Law, 16th Edition at page 142 in Section 150 Says down the law on the subject as follows:

“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.”

7. In the present case since the donor Smt. Najafi Begam was not in actual but in constructive possession over the gifted property it is plain that the property subject of the gift was susceptible only of delivery of constructive possession and it is well settled by the highest authority that if there has been a gift of undivided share in the property and the donor has divested himself or herself of possession at the time of making the gift and delivered constructive possession to the donee then the gift is not hit by the doctrine of Mushaa and must be found to be valid in law. The leading case on the subject is Sk. Mohd. Mumtaz Ahmad v. Zubaida Jan, (1889) 16 Ind App 205 (PC). In that case a Muslim lady had gifted her undivided share to her daughter. The validity of this gift was questioned on the ground that since actual possession of the property was not delivered the gift was hit by the doctrine of Mushaa and was invalid. In rejecting this contention their Lordships observed that the lady had merely proprietary, not actual, possession of the greater portion of the property having been merely in receipt of the rents and profits and that she had made the donee possessor of all properties given by the deed, and had abandoned all connection with them and further provided that the donee was to have complete control of every kind in respect thereof. Having found these facts their Lordships concluded:

“Their Lordships have no doubt that sufficient possession was taken on behalf of: the daughter to render the gift effectual. If possession were once taken and the deed of gift took effect no subsequent change of possession would invalidate it.”

8. In that case also, as here, upon the facts the donor was not in actual possession but in constructive possession and as it was found from the terms of the gift deed itself that she had abandoned all connection with the gifted property and had transferred complete control of every kind in respect thereof to the donee, it was held that constructive possession of the property had been delivered to the donee and the same was held to render the gift effectual and valid. This authority was relied upon in a case of this Court: Hamid Ullah v. Ahmad Ullah, 1936 All LJ 292 : (AIR 1936 All 473) [LQ/AllHC/1936/30] which is almost a direct authority of this Court on a question of the present kind. In that case the subject-matter of the gift was 7/32nd share in six houses and three pieces of land. The gift deed was challenged on the ground that since there had been non-delivery it was hit by the doctrine of Mushaa. While rejecting this plea and upholding the Validity of the gift deed it was observed at p. 295 that the donor admittedly had no physical possession but was in constructive possession through plaintiff and “it seems to us that there was as complete a transfer of the gifted property as the circumstances permitted ……” A perusal of the terms of the gift deed shows that it contains the recital that the donor was in possession of the gifted property along with other co-sharers and that the donee was being put into possession of the same in the same manner in which the donor was in possession and that neither she nor her heirs and successors would have anything to do with the property thereof. In this case therefore it is clear from the terms of the gift deed that the donor had completely divested herself not only of the proprietary right but also of possession or control over the gifted property. That being so, having regard to the view taken in the above authorities it is a necessary inference of law that constructive possession which the donor possessed in the property was delivered to the donee Smt. Sajjad Bano."

47. A similar issue was also considered by the Madras High Court in Kairum Bi and others Vs. Mariam BI and another, 1959 SCC Online Madras 281 and the Madras High Court considered the said issue as under:-

"...........In dealing with these arguments it is well to bear in mind the following observations of the Privy Council in Muhammad Mumtaz Ahmed v. Zubaida Jan(2),

“The doctrine relating to the invalidity of gifts of musha is wholly unadopted to a progressive state of society, and ought to be confined within the strictest rules.”

The question whether a gift to two donees jointly is bad was considered in Ebrahim v. Bai Asi(3). We quote the relevant passage:

“There was a second argument placed before me, to the effect that ‘A gift of property, which is capable of division, to two or more persons without dividing it, is invalid; but it may be rendered valid if separate possession is taken by each donee of the portion of the property given to him……I cannot accept this argument. The authority of the Fatawa Alamgiri and Hidaya is directly against it.”

This view was adopted in Kaniz Fatima v. Jai Narain,(4). On page 221 and 222 Manoher Lall J. observed.

“In the case of Ebrahaim Aikbhai Akuji v. Bai Ashi(5), Tyabji J, has examined the subject at great length and I respectfully agree with his observations. I do see why a donee of musha 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 lookout 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 co-sharers 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.”

In Kalu Beg v. Gulser Beg(6) it was held.

“When there is delivery of possession under a gift made jointly to persons and the donee at some subsequent date either divide the property among themselves or arrange that one should have the entire gifted property, the doctrine of musha ceases to operate and that which was irregular in the beginning becomes valid.”

So far as we are aware there is no decision of this Court directly in point. We find ourselves in respectful agreement with the views of Tyabji J. in Ebrahim v. Bai Asi(5), and of Manohar Lall J. in Kaniz Fatima v. Jai Narain(4).

We would best observe that the rules of Mahomedan law do not require that to make a gift valid the donor must have physical possession of the property and must hand over that physical possession to the donee. It is enough if he has got legal possession of the property and transfers to the donee such possession as the matter is succeptible of. In the present case when Abdul Razack died Katheeje Bi became a co-heir along with the widow and children of Abdul Razack. Similarly when Abdul Subhan died Katheeja Bi became a co-heir along with the widow and children of Abdul Subhan. The possession of one co-heir is ordinarily possession on behalf of all. It must also be emphasised that in June 1948 when Katheeja Bi executed Ex. A.1 her claim to be.

the heir of her soils Abdul Razack and Abdul Subhan had not been challenged or called in question by any one. The possession of the other heirs was possession on her behalf also. And, we may properly say that she was actually in possession of the estate. It was explained in Kaniz Fatima v. Jai Narain(1).

“Possession of a co-owner or a co-tenant is a possession which has to be recognised by the law.”

.............The case in Hamidullah v. Amadulla(5) is also in point. The subjectmatter of the gift there was an undivided 7/32 share in six houses and three parcels of land. The donor was not in physical possession but only in constructive possession of the property. She executed a deed of gift and had it registered. The document recited that the donor was conveying to the donee the same sort of possession which she had. The gift was upheld. The Court observed:

“She admittedly had no physical possession but was in constructive possession through the plaintiff……She however put the donee in a position to obtain possession and it is fact as stated in the plaint that the defendant donee instituted a suit for his share of the rents on the basis of this deed of gift……Mst. Haliman did practically all that she was able to do in a way of divesting herself of possession and giving to the donee……defendant the same possession as she had herself.”

48. The Apex Court in Rasheed Khatoon Vs.Ashiq Ali, 2014 (32) LCD 2188, had the occasion to deal with the ingredients of a valid oral gift and it held as under:-

"8. ... In this context Sections 123 and 129 of the Transfer of Property Act have to be taken note of. Section 123 of thestipulates that for the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. Section 129 provides for savings of donations mortis causa and the gifts made under the Muhammadan law. It is clear from the said provision that the Chapter relating to gifts including registration would not affect any rule of Muhammadan law.

9. In Karam Ilahi [Karam Ilahi v. Sharfuddin, AIR 1916 All 351] [LQ/AllHC/1916/37] it has been held as follows:

"It is admitted that a Muhammadan may make an oral gift provided that possession follows. It seems to us quite clear that the provisions of Section 123 are inapplicable to gifts made by Muhammadans and valid according to their law. It is quite clear that the legislature had in its mind the provisions of Section 123 when enacting Section 129. Section 123 is specifically referred to in Section 129. The deed of gift is admissible to prove that a gift was made."

10. In Nasib Ali [Nasib Ali v. Wajid Ali, AIR 1927 Cal 197] [LQ/CalHC/1926/252] Suhrawardy, J. referred toKamar-un-Nissa Bibi v. Hussaini Bibi [ILR (1881) 3 [LQ/AllHC/1880/2] All 266] and Karam Ilahi [Karam Ilahiv. Sharfuddin, AIR 1916 All 351] [LQ/AllHC/1916/37] and came to hold that the essentials of a gift under the Muhammadan law are a declaration of "hiba" by the donor, an acceptance, express or implied, of the gift by the donee, and delivery of possession of the property, the subject-matter of the gift, according to its nature. A simple gift can only be made by going through the above formalities and no written instrument is required. In fact no writing is necessary to validate a gift and if a gift is made by a written instrument without delivery of possession, it is invalid, in law. Thereafter, the learned Judge stated thus:

"The position under the Mohammadan law is this: that a gift in order to be valid must be made in accordance with the forms stated above; and even if it is evidenced by writing, unless all the essential forms are observed, it is not valid according to law. That being so, a deed of gift executed by a Mohammadan is not the instrument effecting, creating or making the gift but a mere piece of evidence. It may so happen after a lapse of time that the evidence of the observance of the above forms might not be forthcoming, so it is sometimes thought prudent to reduce the fact that a gift has been made into writing. Such writing is not a document of title but is a piece of evidence."

11. In Mahboob Sahab v. Syed Ismail [(1995) 3 SCC 693] [LQ/SC/1995/401] a two-Judge Bench referred to Section 147 of the Principles of Mahomedan Law by Mulla wherein the essentials of valid gift under the Muhammadan law have been elucidated and proceeded to explicate the principle. We think the reproduction of the relevant passage would be seemly: (SCC pp. 696-97, para 5).

"5. Under Section 147 of the Principles of Mahomedan Law by Mulla, 19th Edn., edited by Chief Justice M. Hidayatullah, envisages that writing is not essential to the validity of a gift either of movable or of immovable property. Section 148 requires that it is essential to the validity of a gift that the donor should divest himself completely of all ownership and dominion over the subject of the gift. Under Section 149, three essentials to the validity of the gift should be, (i) a declaration of gift by the donor, (ii) acceptance of the gift, express or implied, by or on behalf of the donee, and (iii) delivery of possession of the subject of the gift by the donor to the donee as mentioned in Section 150. If these conditions are complied with, the gift is complete. Section 150 specifically mentions that for a valid gift there should be delivery of possession of the subject of the gift and taking of possession of the gift by the donee, actually or constructively. Then only the gift is complete. Section 152 envisages that where the donor is in possession, a gift of immovable property of which the donor is in actual possession is not complete unless the donor physically departs from the premises with all his goods and chattels, and the donee formally enters into possession. It would, thus, be clear that though gift by a Mohammedan is not required to be in writing and consequently need not be registered under the Registration Act; for a gift to be complete, there should be a declaration of the gift by the donor; acceptance of the gift, expressed or implied, by or on behalf of the donee, and delivery of possession of the property, the subject-matter of the gift by the donor to the donee. The donee should take delivery of the possession of that property either actually or constructively. On proof of these essential conditions, the gift becomes complete and valid. In case of immovable property in the possession of the donor, he should completely divest himself physically of the subject of the gift."

(emphasis supplied).

12. Recently in Hafeeza Bibi v. Sk. Farid [Hafeeza Bibi v. Sk. Farid, (2011) 5 SCC 654 [LQ/SC/2011/669] : (2011) 3 SCC (Civ) 103] a two-Judge Bench referred to the authority in Mohd. Abdul Ghaniv. Fakhr Jahan Begam [(1921-22) 49 IA 195 : AIR 1922 PC 281] wherein the Privy Council had made a reference to Muhammedan Law by Syed Ameer Ali and approved the statement as regards the essential three conditions for a valid gift. Thereafter, the learned Judges referred to Nasib Ali [Nasib Ali v. Wajid Ali, AIR 1927 Cal 197] [LQ/CalHC/1926/252] , Assan Ravther v.Manahapara Charayil [AIR 1972 Ker 27] [LQ/KerHC/1971/173] and Jabeda Khatun v. Moksed Ali [AIR 1973 Gau 105] and stated the position of law thus: (Hafeeza Bibi case [Hafeeza Bibi v. Sk. Farid, (2011) 5 SCC 654 [LQ/SC/2011/669] : (2011) 3 SCC (Civ) 103] , SCC p. 665, para 24).

"24. The position is well settled, which has been stated and restated time and again, that the three essentials of a gift under Mohammadan law are: (1) declaration of the gift by the donor; (2) acceptance of the gift by the donee; and (3) delivery of possession. Though, the rules of Mohammadan law do not make writing essential to the validity of a gift; an oral gift fulfilling all the three essentials makes the gift complete and irrevocable. However, the donor may record the transaction of gift in writing."

13. After so stating the Court referred to Asaf A.A. Fyzee in Outlines of Muhammadan Law [ Tahir Mahmood (Ed. & revised) (5th Edn., Oxford University Press) 182.] and Mulla,Principles of Mahomedan Law [ (19th Edn.), p. 120.] and eventually ruled thus: (Hafeeza Bibi case [Hafeeza Bibi v. Sk. Farid, (2011) 5 SCC 654 [LQ/SC/2011/669] : (2011) 3 SCC (Civ) 103] , SCC p. 666, para 27).

"27. In our opinion, merely because the gift is reduced to writing by a Mohammadan instead of it having been made orally, such writing does not become a formal document or instrument of gift. When a gift could be made by a Mohammadan orally, its nature and character is not changed because of it having been made by a written document. What is important for a valid gift under Mohammadan law is that three essential requisites must be fulfilled. The form is immaterial. If all the three essential requisites are satisfied constituting a valid gift, the transaction of gift would not be rendered invalid because it has been written on a plain piece of paper. The distinction that if a written deed of gift recites the factum of prior gift then such deed is not required to be registered but when the writing is contemporaneous with the making of the gift, it must be registered, is inappropriate and does not seem to us to be in conformity with the rule of gifts in Mohammadan law."

(emphasis supplied).

14. For a clear understanding of the conception of the valid gift under the Muhammadan law we think it apposite to reproduce the passage from Mulla, Principles of Mahomedan Law [ (19th Edn.), p. 120.] that has been quoted and approved in Hafeeza Bibi [Hafeeza Bibiv. Sk. Farid, (2011) 5 SCC 654 [LQ/SC/2011/669] : (2011) 3 SCC (Civ) 103] : (SCC p. 666, para 26).

"26. ... Under the Mahomedan law the three essential requisites to make a gift valid are: (1) declaration of the gift by the donor, (2) acceptance of the gift by the donee expressly or impliedly, and (3) delivery of possession to and taking possession thereof by the donee actually or constructively. No written document is required in such a case. Section 129 of the Transfer of Property Act excludes the rule of Mahomedan Law from the purview of Section 123 which mandates that the gift of immovable property must be effected by a registered instrument as stated therein. But it cannot be taken as a sine qua non in all cases that whenever there is a writing about a Mahomedan gift of immovable property there must be registration thereof. Whether the writing requires registration or not depends on the facts and circumstances of each case.'

16. From the aforesaid discussion of the propositions of law it is discernible that a gift under the Muhammadan law can be an oral gift and need not be registered; that a written instrument does not, under all circumstances require registration; that to be a valid gift under the Muhammadan law three essential features, namely, (i) declaration of the gift by the donor, (ii) acceptance of the gift by the donee expressly or impliedly, and (iii) delivery of possession either actually or constructively to the donee, are to be satisfied; that solely because the writing is contemporaneous of the making of the gift deed, it does not warrant registration under Section 17 of the Registration Act."

49. This proposition was also followed by this Court in Second Appeal No.77 of 2016 decided on 16.04.2022, Nafees Ahmad Vs. Gulam Mohammad.

50. Having considered the propositions regarding the ingredients of a gift and also noticing the concept of gift of Musha and applying the aforesaid principles to the instant case in light of the evidence available on record, this Court finds that per-se merely because a gift of an undivided property has been made, it cannot be said that it is void.

51. It is also to be noticed that the gift deed made by Quadir Mian will also not be hit by the doctrine of Musha for the reason that Quadir Mian was the exclusive owner and he gifted the entire property to his sons from his second wife. This issue will only have an impact if it is first found that the property belonged to Quadir Mian and Barati Mian and after the death of Barati Mian, there were other co-sharers and each would have a separate share, if the same is proved, then it can be said to some extent that the gift made by Quadir Mian was not of any specific portion but that does not seem to be the case here.

52. As already noticed above, a gift of Musha may be irregular but not void. In the given facts and circumstances of the instant case, it would be appreciated that the transaction of gift which has been made between the father and son, this relates to the gift of Quadir Mian made in favour of the plaintiffs and even in the case of the gift made by the Barati Mian in favour of the defendants, the same would also indicate that it is by the grand father in favour of his grand sons.

53. It is also to be noticed that both Barati Mian and Quadir Mian were residing in the same premises and the record indicates that Barati Mian expired sometime in the year 1950 and Quadir Mian was living in the property and in his life time he has already got a business opened for both his set of children i.e. the plaintiffs from the second wife and the defendants being children from the first wife. It would be seen that the gift was made by the father to his sons who were residing therein and doing business and even if constructive possession was handed over it would be good enough to make the deed of gift valid.

54. In so far as gift of Quadir Mian is concerned, it was duly reduced in writing in shape of deed which was duly attested and registered before the office of Sub Registrar. In so far as the said deed is concerned it clearly amounts to a declaration and the plaintiffs being the sons accepted the same. The deed was proved by examining the witnesses and other material on record was brought by the plaintiffs to indicate that they were running the business under the name and style of Indian Lime Store whereas the defendants were doing the business from the same premises under the name and style of Bahraich Lime Store. The deposition of the plaintiffs witnesses indicate that after executing the said gift deed Quadir Mian used to visit the shop in question and used to sit sometime either with the plaintiffs and sometime with the defendants. His conduct was such that he he had withdrawn from the property and while visiting the property as he was the father, he did not take any active participation in the affairs. Though he being the elder the parties did not get their name mutated but the plaintiffs continued to pay the taxes of the property with the Municipal Authority in the name of Quadir Mian. Thus, from the above, the contention of the learned Senior Counsel that the gift of the property in question was not valid being the gift of Musha does not impress this Court as by the evidence it was amply proved that the plaintiffs were dealing with the property in their own rights without any control of the donor namely Quadir Mian.

55. Another objection was raised by the learned Senior Counsel to suggest that the property in question was not of Quadir Mian but was the joint property of Barati Mian and Quadir Mian. In this regard, learned Senior Counsel has drawn the attention of the Court to the sale deed executed by Laxmi Narain and Saligram bearing paper No.Ga.55 marked as exhibit 20. It is stated that in the said sale deed it was clearly mentioned that Laxmi Narain and Saligram had executed the sale deed in favour of Quadir Mian and Barati Mian, thus, the property was joint. Accordingly, this goes on to show that the property in question was joint between Quadir Mian and Barati Mian and there has been no partition, consequently the gift in respect of a joint property without any division was not valid and moreover Quadir Mian could not have gifted the entire property beyond his share.

56. This submission of the learned Senior Counsel is refuted by the learned counsel for the respondents who have submitted that this interpretation made by the appellant is incorrect. It has been pointed out that from the evidence led by the parties it was admitted that Barati Mian expired in the year 1950. From the evidence, it has also been borne out that Laxmi Narain and Saligram executed the sale-deed dated 16.07.1954.

57. In this view of the matter, it is submitted that the sale-deed could not include the name of Barati Mian as he had already expired. Hence, the contention of the appellants is bad and the property in question was exclusively purchased by Quadir Mian and he gifted the property to the plaintiff by means of the gift-deed dated 20.04.1967.

58. This Court has also noticed the aforesaid arguments and has meticulously perused Exhibit-20. There is no dispute to the fact that the said property is adjacent to the property which was earlier in the names of Barati Mian and Quadir Mian, however, the sale-deed dated 16.07.1954 indicates that it was executed by Laxmi Narain and Saligram. It is to be noticed that perhaps the appellants have misread the contents of the said deed inasmuch as it reads as under:-

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

59. This alphabet in Hindi is interpreted by the learned counsel for the appellants to notify that Kadir Mian and Barati Mian were the vendees/purchasers of the property whereas the submission of the learned counsel for the plaintiff-respondents is that alphabet was taken as an abbreviation for 'Waldiyat' (son of).

60. This Court finds that the submissions of the learned counsel for the respondents appears to be more reasonable and of substance. It is not disputed that Barati Mian expired in 1950. If that was so then there was no occasion for the name of Barati Mian to be included in the sale-deed in the year 1954. At this stage, the abbreviation would mean 'Waldiyat' (son of) and if it is read in this context it would make sense that Laxmi Narain and Saligram had executed the sale-deed in favour of Kadir Mian son of Barati Mian.

61. In light of the aforesaid, at least, this property is concerned, it cannot be said that it was a joint property of Barati Mian and Kadir Mian. This Court has no hesitation to hold that the said sale-deed dated 16.07.1954 was in favour of Quadir Mian alone and it is also for the reason that admittedly Barati Mian had expired in the year 1950 and Quadir Mian had the right to gift the same exclusively.

62. The other issue relating to the properties belonged to Barati Mian is concerned, there were pleadings to the effect that Barati Mian in his lifetime had already divided his property amongst his two sons and a daughter namely Quadir Mian, Saffi-ul-laha and Mst. Mamkoma.

63. Another interesting fact, which is relevant, is that two daughters of Saffi-ul-laha were married to Noor Ahmad and Samshuddin who are the appellants before the Court. Also the sister of Noor Ahmad and Shamshuddin was married to the son of Safi-ul-laha. Thus, it would indicate that there is a delicate relationship between Saffi-ul-laha and the defendants as he was their father-in-law as well as Saffi-ul-laha was also the father-inlaw of the sister of the defendants. This can be elicited from the statement of P.W.5 and this relationship is not disputed by the parties.

64. It would also be relevant to notice that the fact as stated in the replication that Barati Mian had divided his property amongst his heirs and in pursuance whereof, the disputed property fell in the share of Quadir Mian who along with the property purchased from Laxmi Narain and Saligram on 16.07.1954 thereafter went ahead to gift the same in favour of the plaintiffs (sons from his second wife), despite the aforesaid pleadings which was also reiterated in the deposition of the PW-3 Mohd. Abad, yet there was no evidence led worth its name on behalf of the defendants to show that no such division had taken place or that the property in dispute was joint with the other heirs of Barati Mian.

65. It was open for the defendants to have examined his father-in-law Saffi-ul-laha, who was the real brother of Quadir Mian to contradict the fact or he could have examined Mst. Mamkoma thier (Bua), yet none of the family members entered into the witness-box to contradict the fact that Barati Mian had divided the properties amongst his heirs in his lifetime nor they came forward to state that the property was joint as after the death of Barati Mian and Quadir Mian, the property remained in the name of the plaintiffs. This also gives credence to the fact that Saffi-ul-laha and Mst. Mamkoma were already in possession of their respective shares which they received from Barati Mian in division made by him in his lifetime. Therefore, the contention of the defendants that the property was joint is not made out by any cogent evidence on record.

66. In the given facts and the evidence on record, the conclusion drawn by this Court matches with the reasons and the conclusion of the trial Court to the effect that the property in question belonged to Barati Mian and Quadir Mian. One part of the property was purchased exclusively by Quadir Mian vide sale-deed dated 16.07.1954 which is marked as Exhibit-20 and he also had the right to execute the gift-deed which he did by making a declaration. The gift was accepted by the plaintiffs and since there was an affinity being father and sons who were already in possession of the property, hence, by constructive possession, the same was also handed over and this can be ascertained also from the tenor and texture of the statements of the witnesses examined by the plaintiffs. Thus, the gift of the plaintiff stands adequately proved and it cannot be said that it is void being a gift of undivided 'Musha', for the reasons already recorded hereinabove.

67. Lastly, the issue of validity of the gift in favour of the defendants if examined would reveal that the defendants had filed their written statement on 28.05.1973. In Para-17 of the written statement, it was stated that Barati Mian had made a gift in favour of the defendants about 30 years ago. Noticing that the written statement is of the year 1973, 30 years prior thereto would relate to a period around the year 1943. Surprisingly, the defendants, who all along claimed to be the owners in terms of the gift made by Barati Mian in the year 1943 remained in possession and did not make any overt act to get their names mutated in any record or to assent their independent rights even after Barati Mian expired in 1950 and knowing fully well that their relation with the plaintiffs and also with their father Quadir Mian was not cordial.

68. The record also goes on to show that during the pendency of the instant first appeal, the defendants had moved an application under Order XLI Rule 27 CPC seeking to bring on record a memorandum said to have been executed by Barati Mian on 21.08.1948 which is marked as Exhibit-A12 and the same was proved by examining Shri Shirajuddin son of Shamshuddin, in pursuance of the order passed by the Court dated 22.05.2023.

69. What is more alarming is the fact is that the defendants had pleaded that the original of the said memorandum dated 21.08.1948 was with Saffiul-laha, who first had given him a photocopy and then later the original was handed over which was brought on record with an application under Order XLI Rule 27 CPC.

70. As already noticed above, the two daughters of Saffi-ul-laha were married to Noor Ahmad and Samshuddin i.e. the defendants no.1 and 2 and the sister of the defendants was married to the son of Saffi-ul-laha. In this view, Saffi-ul-laha (real brother of Quadir Mian) was the father-in-law of the defendants as well as the sister of the defendants and in such situation though it is stated that the memorandum of the gift was with Saffi-ul-laha yet he did not hand over the same to the defendants and only at a later stage the same was placed on record in terms of Order 41 Rule 27 CPC. This memorandum was connected and proved by the testimony of Sirajuddin which was recorded on 18.07.2023 in pursuance of the order passed by this Court dated 23.05.23 yet there has been no explanation as to why Saffi-ullaha who was the son of Barati Mian, brother of Quadir Mian and the fatherin-law of the defendants did not hand over the said document which was of prime importance and was the sheet anchor of the case of the defendants. If the said memorandum was available with him since 1948 why it was brought on record after about 49 years from the date of its execution has not been explained. This raises serious doubt regarding the said document. In the aforesaid backdrop of the facts and the relationship between the parties.

71. The record further goes on to suggest and which can be culled out from the testimony of the defendants' witnesses that during the period of litigation before the trial Court, the defendants had already stopped residing in the premise and they were residing in another house in Kazipura. The plaintiffs and the other witnesses suggested that after the execution of the gift-deed in favour of the plaintiffs by Quadir Mian, the defendants were asked to leave and though they had shifted their residence. They had sought time to vacate the shop in question. The defendants on the other hand claimed that the house situate in Kazipur belonged to their uncle (Mama) but they did not deny that they were residing in Kazipura. There is categorical statement of the plaintiff to state that this house was purchased by Quadir Mian to settle the defendants. It was also admitted to the defendants that the sale-deed of the said house was with their uncle (Mama) but the same was never brought on record by the defendants. In case, if the house was in the name of the uncle of the defendants, the sale-deed could have been placed on record to substantiate tthis fact but it has not been done. Moreover, on behalf of the defendants none of the family members including the uncle and aunt (Bua) were examined as a witness to suggest that the defendants were already seized of the property in their own rights on the basis of the oral gift made by the Barati Mian nor there was any evidence to substantiate the plea that the house and the properties left behind by Barati Mian were not divided in the lifetime of Barati Mian. None came forward including Saffi-ul-laha to deny that Barati Mian had not divided his properties and that the heirs were still co-owners. Nor it was stated and proved which specific part of the property was gifted by Barati Mian in favour of the defendants.

72. Another interesting feature is that the plaintiff have been paying taxes to the Municipal Authorities throughout and the said receipts have also been brought on record as Paper No.G-43 and G-48. There is no explanation from the side of the defendants to the effect if they had got the oral gift from Barati Mian and why they did not get their names mutated or why they did not pay the Municipal Taxes. It was neither explained which specific part of the disputed property was given to them by gift.

73. The evidence of the defendants' witnesses namely Noor Ahmad, Ramjan Ali, Mohd. Ali and Sajjad if seen, it would give a clear indication that each of the witnesses has given a different date relating to making of the oral gift by Barati Mian. It is also seen in context with the fact that the defendants while filing their written statement did not disclose any date of the gift rather it was stated that the gift was made about 30 years ago. This is to be seen in context of certain timelines inasmuch as admittedly Barati Mian expired in the year 1950. Thus, if the gift had to be made it would relate prior to that period. The record also indicates that Barati Mian had also gone for Haj in the year 1948. As per the timeline as referable to the written statement, the gift was made in the year 1943 whereas the defendant No.1 Noor Ahmad. in his cross-examination stated that Barati Mian had made an oral gift in the month of April, 1945. He also stated that at the time of making the oral gift, the then Manager, Fazal Haq Siddiqui, Mohd. Shah, Imam Ali, Sajjad Ali, Shri Ram and Moti Lal along with 22-25 other persons were present. It was also stated that Mohd. Shah and Fazal Haq Siddiqui were called by Barati Mian while the other had come to their own. He further deposed that he never made an attempt to get his name mutated or to pay the house or water tax. The other witness Sajjad who was examined as DW-2 stated that the gift was made by Barati Mian in the month of August or September 1945 in the afternoon and about 10-15 persons apart from Sajjad were present. He also named few persons, who were said to be present at the time when the gift was made but surprisingly there is no explanation as to why any of those persons who were present, were not examined as a witness. Even from the testimony of DW-2, the essential ingredients of a gift which has already been noticed in the previous paragraph was not made out. DW-3 Ramjan is merely a witness who attempted to indicate that the defendants were in possession while the DW-4 Mohd. Ali in his deposition stated that about 30 years from today (the date when he was deposing i.e. 31.01.1977), Barati Mian prior to going for Haj had made the gift in favour of his three grand-sons namely Noor Mohd., Shamsuddin and Baduruddin. If this is to be taken into account then it would indicate that the gift-deed would have been made in the year 1947. Thus, it would be seen that all the witnesses of the defendants have stated different timelines regarding the date of making of the oral gift by Barati Mian.

74. It is also pertinent to notice that once the defendants were aware of the fact that the plaintiffs were claiming title on the basis of the gift-deed executed by Quadir Mian and the defendants had set up their case on the basis of an oral gift said to have been made by Barati Mian yet the defendants did not introduce any counter claim seeking declaration of their rights or partition as even in case the defendants succeeded then they could not be the exclusive owners of the entire property but only to the extent of share of Barati Mian and then as facts reveal they ought to have got their share partitioned or separated as one part of the property was purchased by Quadir Mian by a sale deed after death of Barati Mian.

75. Now only the document which has been relief upon by the defendants is the memorandum dated 21.08.1948 which is said to be executed by Barati Mian acknowledging that he had already made an oral gift but in order to prove the same that the memorandum was executed and had the signatures of Barati Mian and it was witnessed by Mirza Husan Mahendi and Razzab Ali. As already noticed above that the said document does not inspire much confidence for the reason that though it is said to be in the custody of Saffiul-laha, the real brother of Quadir Mian and also the father-in-law of the defendants yet there is no explanation as to why the said memorandum since 1948 till 2007 did not see the light of the day. The said document is said to be proved by Sirajuddin who is the son of the defendant No.2 Shri Shamsuddin. No attempt was made by the defendants to prove the writing of Barati Mian with his signature/thumb impression on the memorandum dated 21.08.1948.

76. At the relevant time where two daughters of Saffi-ul-laha were married with the defendants No.1 and 2 and both of them were litigating since 1973 yet it was never thought that the said memorandum be handed over to the defendants who were the son-in-law of Saffi-ul-laha.

77. Significantly, as already noticed, Saffi-ul-laha was neither summoned nor he entered into the witness-box as he would have been a very crucial witness to substantiate that Barati Mian had executed the said memorandum and had handed over the same to Saffi-ul-laha for safe custody to be handed over to the defendants at the appropriate time. Even after the death of Barati Mian in the year 1950, the said document was never handed over nor there is any reference to it in the pleadings of the defendants. Saffi-ul-laha being the son of Barati Mian and real brother of Quadir Mian and father-in-law of the defendants could very well throw light on the aforesaid aspect as well that is to say that whether any division was made by Barati Mian during his lifetime and that each of the sibling of Saffi-ul-laha got the property which is in their possession, as divided by Barati Mian and what portion was gifted to the defendants from amongst the properties of Barati Mian. He was also an important witness to depose whether the house in Kazipur was purchased by Quadir Mian to settle his son from his first wife or it was actually purchased by the uncle (Mama) of the defendants. The defendants also did not lead any evidence in this regard nor filed the deed of the property of Kazipura on record.

78. In light of the aforesaid discussions and in light of whatever evidence was on record including the deposition of Sirajuddin this Court has no hesitation to concur with the reasons given by the trial Court and the Court finds that the alleged gift set up by the defendants could not be cogently proved whereas the gift made by the Quadir Mian in favour of the plaintiffs which was reduced in writing and duly registered before the office of SubRegistrar on 20.04.1967 has been proved and that it is not bad as the gift of undivided 'Musha'. Hence, this Court finds that there is no error in the judgment and decree passed by the trial Court dated 06.04.1977 passed in Regular Suit No.14/1973 and it is affirmed.

79. From the aforesaid discussions, this Court finds that the appeal is devoid of merits and is accordingly dismissed. In the facts and circumstances, there shall be no order as to costs. The record of the trial Court shall be returned forthwith.