Full Judgment
1. The donor in this case was the mother of the plaintiff. She had a son who was the husband of the first defendant; defendants 2 to G are their children. The property in suit came to the donor under a deed of settlement. She was in possession and she allowed her son, his wife and children to live with her. Her son died in May-June 1914. She then left the house temporarily and executed a deed of gift to plaintiff while she was living in the latter's house. This was on the 23rd July 1914. She directed her daughter to take possession from the defendants. When the daughter's husband attempted to enter the house on behalf of his wife, he was resisted. Hence this suit.
2. It is clear from the judgment of the District Judge that the defendants were licensees who were permissively in occupation. There can be no doubt that this finding is based on legal evidence. Ex. I a petition sent by the defendants to the Registrar practically admits that the were in the house with the permission of the donor, Beevi Umma.
3. The question is whether as the licensees were physically in occupation of the house, the owner should be regarded as being out of possession. Mr. Justice Abdur Rahim in Fakir Nynar Muhamed Rowther v. Kandasami Kulathu Vandan I.L.R. (1911) M. 120 says this. ' For instance, if the thing is in the hands of a pledgee or a hirer or lessee or any other person whose possession is attributable to the existence of some right or interest of his own in the property or in the hands of a ghasib, that is, a person who has obtained possession of the property without the consent of the owner, the owner in all such cases cannot make a valid gift ' It is pointed out by this learned judge in his book on Muhamadan Jurisprudence that such a consideration could not apply to the possession of a licensee. This is what he says in page 276, 'Suppose a friend comes into my house to see me, it cannot be said that he is in possession of the house as he has no intention to exclude me from it. Hence, it is that the law speaks of the possession of a licensee as possession of the owner.' It is clear therefore the donor was in law in possession on the date of the gift. The cases quoted by Mr. Parameswara Aiyar are those in which the person in possession had a legal right to continue in possession before eviction in due course of law. The case of a licensee is not analogous to them.
4. The next question is whether the donor has given such possession as Muhamadan law requires; of course mere registration of the document by itself is not enough. If, the donee has been enabled to take possession, the fact that possession was not physically delivered would not matter. Mr. Ameer Ali in his book, Vol. I, page 114, says. ' Power to take possession is equivalent in certain instances to actual delivery of possession.' We think in this case there was authorisation by the donor to take possession from persons whom she had out of affection allowed to reside with her. They were bound to go out if the donor asked them to vacate, and we think, the donee who was authorised to take possession was similarly entitled. Mr. Tyabji in his book states the rule as regards the nature of the possession that should be given in the same terms as Mr. Ameer Ali has stated it. In our opinion all that was necessary to give possession was done by the donor and that consequently the gift is not invalid for want of seisin.
5. We think the District Judge was right in the view of the law he has taken; we dismiss the second appeal with costs.