On a suit brought by Syed Jahandar Shah, appellant Ghulam Shah's claim to an undivided-share in agricultural land on the basis of a gift was negatived by the learned Civil Judge, Second Class, Nawabshah by his judgment and decree dated 31-5-1962. An appeal there against by Ghulam Shah was dismissed by the learned Additional District Judge, Nawabshah, on 23-12-1963. This is a second appeal.
Title to the disputed land flows from deceased Ali Akber Shah, a Shia Muslim who had two wives, Noor Begum and Khadija Banu. While Noor Begum bore Ali Akber Shah two sons Syed Jahandar Shah and Syed Sherali Shah, the other wife Khadija Banu was issueless. Noor Begum had predeceased her husband Ali Akbar Shah. On 16th August 1921 Ali Akber Shah executed and registered a gift of his agricultural lands situated in Dehs Mari Janallah Shah, Kandhra and Begmaji, Taluka Rohri. District Sukkur, in favour of his wife Khadija Banu. Two years after this gift, Ali Akber Shah died leaving behind his widow Khadija Banu and his sons Syed Jahandar Shah and Syed Sherali Shah through his deceased wife Noor Begum. Soon after his death the two sons filed a Suit (Suit No, 6 of 1923) to dispute the legal existence and validity of the gift made by their father in favour of Khadija Banu. While this suit was pending the parties referred their disputes to the sole arbitration of Ghous Bakhsh son of Sahib Karim Sain, the Sajada Nashin of the Aala Dargah of Jhok Sharif. On 29th June 1923 the sole arbitrator made his award. This award was filed in Suit No, 6 of 1923 and on 28th July 1923 a decree was issued in terms of the award. According to the award and the decree which followed in terms thereof, the gift deed executed and registered by Ali Akber Shah in favour of Khadija Banu was nullified. However, in lieu of the gift Khadija Banu was awarded a 0-2- 0 annas life interest and a further 0-2-0 annas undivided share of absolute interest in Deh 25, Nusrat. After the award and the decree, Syed Sherali Shah sold out his entire 0-6-0 annas interest and S ed Jahandar Shah sold a part of his interest in the land in question. By reason of the sales effected, the shares of Jahandar Shah and Khadija Banu in the disputed land under-went consequential re-adjustment and stood at 0-8-4 (eight annas and four pies) and 0-7-8 (seven annas and eight pies) respectively.
2. In the year 1925 Khadija Banu gifted her undivided absolute share to Syed Ghulam Shah her nephew. He was a minor at the time of the gift and under the protection of the Court of Wards. It is contended by the learned counsel for the appellant that the Court of Wards actually took over control of the minor's gifted share in the land. Later on however Ghulam Shah attained majority and he took over the management and control of not only his own gifted share but also the life interest of Khadija Banu as her attorney.
3. On 3rd July 1960, Khadija Banu died. Upon her death the revenue authorities mutated only a 0.3- 10 share in the land in favour of Jahandar Shah representing his reversionary interest, the other 0- 3-10 share having been gifted away by Khadija Banu during her lifetime as an absolute interest.
Jahandar Shah was not content with what he received and on 30th October 1961, he filed a suit against Ghulam Shah and his lessee for a declaration that he was entitled to the full interest of 0- 7-8 share held by Khadija Banu. He also prayed for an injunction to enable him to receive the lease money from the lessee of the disputed share and also the possession of the land on expiry of the lease. The suit was resisted by the defendants therein who, while claiming the gift in favour of Ghulam Shah to be perfectly legal and valid, further contended that even the life interest possessed by Khadija Banu was in law to be construed as an absolute interest. The learned Civil Judge seized of the suit framed several issues and holding that gift of a Mushaa was not admissible in Muslim Law unless followed by partition and delivery of possession, he decreed the suit in favour of Jahandar Shah. The same view prevailed with the learned Additional District Judge, who dismissed Ghulam Shah's appeal.
4. While arguing this Second Appeal before me learned counsel for the appellants limited his attack to the finding of the Courts below on the question of validity of the gift made by Khadija Banu in favour of Ghulam Shah. This gift, it may be observed, was rejected as invalid by both the Courts below on the ground that what was gifted by Khadija Banu was an undivided share in agricultural land and that unless such gift was followed by physical partition of the share and delivery of possession, it remained a nullity. While reaching the above conclusion it is obvious that the trial Court as well as the first appellate Court took what may seem to be an axiomatic view of the law on the subject. It is largely true that sources of Muslim Personal Law have frowned on gifts of undivided estates. The reason for this attitude is not far to seek. A gift carries with it an essential ingredient of delivery of possession in order that it may be valid and complete. An undivided share in an estate, as long as it remains so, is not capable of being physically delivered to the donee and could not therefore validly form the subject of a gift. The concept in its pristine form addressed itself to situations in which more than one person owned undefined interest in property. It was also extended in its operation to definitive but undivided shares held commonly with others in a joint estate. In all such cases the underlying object of prohibiting a gift was the impracticability of the transaction and the confusion it tended to bring about in the conglomerated nature of title to property. The disability was not peculiar to gifts only but applied to sales as well. Thus according to the MEJELLE, article 209, the sale of a thing, the delivery of which is not possible, is invalid. But article 214 of the same text provides that a sale by the owner of his known undivided share (Hissa Shell's) of real property, before division, such as a half, or a third, or a tenth, is good. And article 215 states that any one can sell his undivided share in a property to another without obtaining the permission of his co-owner. It would thus seem that delivery of possession, symbolic though it may be, is a necessary ingredient of every transaction by which property is conveyed in praesenti and its non- fulfilment vitiates the transaction, not because it is a breach of a divine ordainment, but because it impedes perfection of title. In the context of the foregoing discussion it seems to me a rather grotesque proposition that while a co-owner of land may validly under Shara sell his definite undivided share in it, he may not however transfer it by way of a gratuitous gift. The stipulation with regard to delivery of possession in relation to Muslim gifts as a necessary ingredient to its completion has very often been carried to absurd limits. It has often been applied as a rule of thumb without giving thought to the question whether, in the circumstances of a given case, physical delivery of possession was necessary to perfect title and to enable effective enjoyment of ownership rights. I find it Impossible to view the requirement with regard to delivery of possession for a valid Muslim gift except as step necessary to complete the transfer in all respects and to divest the donor of all interest in and dominion over the property. No doubt a gift of immovable property of which the donor is in actual possession will not be complete unless the donee formally enters into possession, But where the donor himself is not in actual possession, except constructively or fictionally, the failure to handover physical possession of the gifted property will not derogate from the completeness of the gift if the donee is otherwise in a position to exercise full ownership rights in relation thereto.
5. In the case before me the two Courts below have not come to examining whether the possession of the gifted property was or was not delivered to Ghulam Shah. They have also not found it necessary to find if Ghulam Shah effectively exercised ownership rights in respect of the share he received in gift. The gift was struck down as invalid on the sole hypothesis that being a gift of an undivided share in agricultural land it cannot, under Muslim law, be validly made unless followed by partition and delivery of possession. The learned Judges of the lower Courts have in my opinion clearly fallen in error in this view.
6. As early back as 1875 the Judicial Committee in Ameeroonissa Khatoon v. Abedoonissa Khatoon observed that the principle of the rule of Mushaa and the reasons on which it is founded do not apply to definite shares in Zamindaries, which are in their nature separate estates capable of distinct enjoyment. Following the Privy Council's decision in Ameeroonissa's case, a Division Bench of the Allahabad High Court in Jiwan Baksh v. imtiaz Begun opined that a defined share in a landed estate is a separate property to the gift of which the objection attaching to Mushaa is inapplicable. The learned Judges conceived that their view of the matter was not only sanctioned by the Privy Council but well founded in reason. Then came the celebrated Privy Council case of Muhammad Mumtaz Ahmed and others v. Zubaida Jan and others in which their Lordships of the Judicial Committee observed that the doctrine relating to the invalidity of gifts of Mushaa was wholly unadapted to a progressive state of society, and ought to be confined within the strictest rules. They further noted that there was authority for the proposition that possession taken under an invalid gift of Mushaa transfers the property nonetheless according to the doctrine of both the Shia and the Sunni schools.
7. In Sadiq Hussain Khan v. Hashimali Khan , the question of delivery of physical possession of a gift of undivided shares in Zamindari villages and parcels of land came up before the Privy Council.
Their Lordships observed that physical possession in their case was impossible and as to them the receipt of the appropriate portion of the rent or income issuing out of or derived from them was the only form the necessary possession could assume.
8. In Nazirdin v. Mohammad Shah , a Division Bench of the Lahore High Court, while observing that the original rigidity of the rule of Mushaa had been considerably relaxed in its application to British India, laid down the test that should be applied in cases of gifts under Muslim law. The test is to see whether the intention on the part of the donor has been expressed in unequivocal terms and has been attended by honest efforts on his part to complete the gift by divesting himself of control1 2 3 4 5 over the property. If the donor has done so, a gift of Mushaa will be as valid as that of property which can he physically handed over to the donee. There are other decisions of Indian Jurisdiction which recommend considerable caution in applying the doctrine of Mushaa. Amongst the decisions of Courts in Pakistan may be mentioned Bahadur v. Jan Muhammad in which a learned single Judge of the then High Court of West Pakistan at Karachi held that the Muslim law doctrine of Mushaa had no application to a gift of a share in a Zamindari. But the whole issue appears now to have been clinched by a decision of our Supreme Court in Sonaullah Fakir v. Alam Fakir . Their Lordships while dismissing a petition for special leave to appeal observed :- "The plea that gift of 1/3rd share of undivided property by Osman Fakir in favour of Sale man was hit by the doctrine of Mushan is devoid of force. It is now a well settled rule that gift of a share of undivided property is, under Muslim Law, quite valid."
Mr. Khalid Ishaque,learned counsel for the respondent, attempted to distinguish the above decision by arguing that in the case before the Supreme Court it was found that Soleman had taken possession of his 1/3rd share which operated to validate the gift of a share in the undivided property. Learned counsel however does not appreciate that the taking of possession by Soleman is mentioned by the Supreme Court as an additional circumstance in the case, independent of the rule upheld by them. Even so, the reference to 1/3rd share having passed into possession of the donee does not necessarily imply physical possession of divided land.
9. The ratio of the foregoing discussion and the decisions cited by me clearly is that the gift of an undivided share in landed estates is not necessarily invalid in the absence of proof of delivery of possession by partition if it is otherwise apparent that the donor had divested himself fully of his interest therein and the donee was enabled by the gift to exercise all the rights possessed by the donor.
10.Learned counsel for the respondent argued with a great deal of emphasis that there was no evidence at all of the donor having divested herself of her interest in the gifted share. I do not however see how this argument can be validly presented at this stage. The respondent/plaintiff had assailed the gift on the sole contention that being gift of an undivided share in land it offended the doctrine of Mushaa. The Courts below never got on examine the gift from any other angle nor was any placed before them. In fact no issue was framed on the question now urged. And I am least inclined to find fault with the lower Courts in this connection. The case of the respondent was that the gift was invalid since it was a gift of a Mushaa in which delivery of possession can only follow partition. Thus the actual control of Ghulam Shah over gifted share was neither raised as an issue nor did it come to be considered, on the other hand it is the respondents own case that the subject land had been leased out by Ghulam Shah to Saboo Khan, although it is stated that he did so as an attorney of Khadija Banu. The very admission on the part of Jahandar Shah that Ghulam Shah was the attorney of Khadija Banu leads one to the conclusion that Ghulam Shah had control of the property of Khadija Banu even during her life time. If this be so then evidence of delivery of possession of the share loses its importance.
11. A further aspect of the appellants case which has impressed me is that the Award of the Arbitrator which was adopted by the Court by consent of both the parties specifically empowered Khadija Bann to make a gift of 2 annas of her undivided share. Jahandar Shah having given his concurrence in principle to such disposition, he would be estopped under law from questioning it.
Reference in this connection may be made to a passage contained in para. 230 of Spencer Bower and Turner's book on the law Relating to Estoppel by Representation, Second Edition. It is said : "Where any act, transaction, or proceeding is, by words or conduct or in action, represented or treated as valid or regular, the represent or Is estopped, as against the represented, from afterwards setting up its invalidity or Irregularity."
12.Lastly, I may mention that it became necessary for me to deal at some length with the Muslim6 7 Law doctrine of Mushaa in relation to gifts since both the Courts below had granted relief to Jahandar Shah by purportedly following it. But this effort on the part of the lower Courts was hardly necessary since the parties admittedly belong to the Shia sect and relying on Baillie, 204, Mulla in his sixteenth edition of 'Principles of Mohammadan Law', states "A gift of an undivided share is valid (under Shia Law), though it be a share in property capable of partition."
13.The appellants have in this appeal confined their attack only to that portion of the decree which declares the gift of Khadija Banu in favour of Ghulam Shah as invalid. In the result, the lower Court decrees to the extent of the said declaration and the injunction issued in consequence thereof are set aside. This judgment will not, however, affect the respondents rights in relation to that part of Khadija Banu's estate in respect of which she was found to have only a life interest. The appellants will have half their costs throughout. (1875) 2 I A 87 I L R 2 All. 93 (1889) 16 I A 205 (1916) 43 I A 212 AIR 1936 Lah. 92 PLD 1960 Kar. 745 1968 SCM R 311