Abdul Sathar and ors. Vs. Muhammad Ali and ors. - Court Judgment

Excerpt:
property - gift - muslim law - plaintiff claimed that eight defendants entitled to 26/35 share in scheduled properties - eight defendants executed registered gift deed in favour of plaintiff - whether gift deed valid and binding on defendants - requirements of valid gift are firstly declaration of gift by donor - secondly acceptance of gift express or implied by donee - thirdly delivery of subject matter by donor to donee - declaration by donor of his having parted with possession was admission binding upon plaintiffs and defendant - in absence of independent proof presumption raised by admission ought to be suffice to support deed - impugned gift deed valid document. - - she has been living with her husband and in the circumstances, the gift is perfectly valid. equity and good conscience, and that it was open to doubt whether mohammedan rule as to delivery of possession being necessary to validate the gift, was adapted to modern requirements, and whether the mode of transfer laid down as obligatory on europeans and hindus by section 123 of the transfer of property act and adopted by the parties in that case, viz. , by registered instrument attested by two witness and signed by the donor, ought not, in equity and good conscience, to be held as efficacious as delivery of possession in the case of mohammadans. justice shephard who held that, assuming the mohammedan law to apply, the gift was good. mussa koya (supra), in that case the gift was made orally, but this fact cannot in our opinion make any difference, as if a gift is bad by mohammedan law for want of possession when made orally, there is nothing in the provisions of the registration act iii of 1877 or the transfer of property act iv of 1882 to render such gift valid when made by registered instrument. 775 in these two cases the courts were unanimous that mohammedan law was applicable, but there was a difference of opinion as to the grounds which it was applicable, the majority holding that in the circumstances it was applicable as rule of justice, equity and good conscience, while the minority were of opinion that question as to gift, between mohammadans were covered by the express provisions as to question regarding succession, inheritance, marriage or caste or any religious usage or institution. 1112 and that in choosing between conflicting authorities the principles of justice, equity and good conscience must be regarded vide sheikh muhammad mumtaz ahmad v. mohammed hassan, ilr 331 ia 68, it is incumbent on a party claiming under a gift to show very clearly that the requirements of mohammedan law have been met, and consequently, if he relies on a gift without consideration, to show that there has been delivery of the thing given, so far as it is capable of delivery. 1 and 2 have shown that the gift under which they claim has satisfied the requirements of that law as to transmutation of possession and otherwise. much reliance was placed by the plaintiffs on the circumstances that the donor had continued to collect the rents as before ;but this circumstance in the case of gift from a husband to a wife may be accounted for by the husband (as the person upon whom the task would naturally devolve), collecting the rents as his wife's manager ;and slight evidence to show that such was the case may well, in our opinion, be accepted as sufficient, in a case like the present, of a formal instrument of gift accompanied by registration. ' 14. it seems, however, that without in any manner departing from the above rule when occasion came to decide whether on the facts of particular case, the liberal understanding of the condition of hiba under the personal law of muslims as to the delivery of possession should be zealously adhered to or for the reasons of equity and good conscience, departure should be permitted, a bench of this court in the case of fathima bivi v. 68. in british courts the mohammedan law of gift is administered as between mohammedans on the grounds of equity and good conscience. but the courts below have failed to appreciate the evidenciary value of the declaration by the donor which constitutes an admission as against him and those claiming under him. both of you shall from this day onwards hold and enjoy in peace the gift properties with absolute right and with powers of alienation. ..you shall if you so desire enjoy the settlement property jointly in common or enjoy the same by dividing by metes and bounds. fakhir jahan begum (1931) 62 mlj 320. the opinion of the council was delivered by sir george lowndes who said in dealing with the conditions necessary to be satisfied before a gift by a muslim could be upheld :the second objection involves some consideration of the mohammedan law.mishra, j.1. defendants 2, 4 and 6 in a suit for declaration of title to 26/35 shares in the plaint schedule properties by the plaintiff/respondent have preferred this appeal against the judgment of this court, by which the learned single judge has confirmed the trial court's judgment and decree based on a deed of gift. the original plaintiff who is the second wife of the alleged donee (eighth defendant in the suit) filed the suit stating that defendants 1 to 3 were the sons and defendants 4 and 6 were dependants of the eighth defendant through his predeceased first wife. after the death of his first wife, the eighth defendant married the plaintiff as his second wife, who herself was the widow of another through whom she had four children. she did not beget any child for the eighth defendant. the seventh defendant was the brother of the eighth defendant.2. the plaintiff claimed that the eighth defendant was entitled to 26/35 shares in the schedule mentioned properties. on 14.10.1965 he executed a registered deed of gift in favour of the plaintiff in respect of his 26/35 shares in the schedule mentioned properties and handed over the deed of gift to her, who accepted it and accordingly, the plaintiff was put in possession of the schedule mentioned properties. according to the original plaintiff, she continued to be in possession of the 26/35 shares in the schedule mentioned properties, but found that the defendants enraged by the execution of the deed of gift attempted to trespass into the suit properties. defendants 9 to 18 were added as party/defendants as the heirs and legal representatives of the seventh defendant, who died during the pendency of the suit. the eighth defendant also died pending suit and the plaintiff/defendants 1 to 6 were recorded as his legal representatives.3. in a common written statement, defendants 1 to 6 admitted the relationship set out in the plaint, but contended that the suit houses were purchased by their mother, the first wife of the eighth defendant from out of her moneys in the name of the eighth defendant, his brother, the seventh defendant, their another brother, their sister and mother, all benami for her. the eighth defendant, therefore, had no right in the suit properties. he had executed a letter of undertaking on 11.4.1958 admitting that the suit house was purchased out of consideration provided by his first wife and mother of defendants 1 to 6. as he had no right in the suit properties, the gift deed executed by him in favour of the plaintiff was void in law. the defendants 1 to 6 disputed the plaintiff's claim that she was in possession of the suit properties and alleged that they also resided in the suit house where the plaintiff lived as the second wife of the eighth defendant and not in her independent right. they also maintained that the gift deed had been procured by the plaintiff coercing the eighth defendant which was as a result of the undue influence of the plaintiff upon him and not out of his own free will and volition.4. there has been no other contest except by defendants 1 to 6. the trial court answered the two main questions viz., whether the deed of gift dated 14.10.1985 was true, valid in law and binding on the defendants 1 to 6 and whether the gift was hit by doctrine of musha in favour of the plaintiff : the same two points, however, were canvassed before the learned single judge, who has held that the donor has done all that he could do to put the donee in possession and the donee has continued in possession since then. learned single judge has accordingly dismissed the appeal.5. it is on record that the plaintiff is the second wife of the eighth defendant and before she married the eighth defendant, she had been married to another and had four sons through the other husband. she never got any child for the eighth defendant. musha is an undivided share in property either moveable or immovable. the law applicable to the mohammedans in india accepts valid gift of an undivided share in property which is not capable of partition or division and holds a gift of an undivided share in property which is capable of division fasid, that is to say irregular, but not batil, that is to say not void. such a gift can be preferred by subsequent partition and delivery to the donee of the share given to him. until, however, possession is taken by the donee, the gift is not validated. exceptions to the above rule however, are :(1) a gift of an undivided share is capable of division from the moment of the gift in the case where the gift is made by one co-heir to another. see kanij fatima v. narain, (1944) 23 pat. 216;(2) a gift of a share in free hold property in a large commercial town. see ibrahim goolam ariff v. saidoo, ilr 35 cal. 1, etc.6. learned single judge has noticed the three essentials for the validity of a gift under muslim law that is to say declaratian of gift by the donor, acceptance of the gift express or implied by the donee and delivery of the subject matter of the gift by the donor to the donee. he also extracted from the deed of gift its contents, which are as follows : (regional language) and found on facts that it is not a case of actual delivery of possession or separate possession to the donee by the donor but said,'it was held by the judicial committee that having regard to the declaration in the deed and it handed over to the donee, the gift was valid and that in the case of an intended gift by a husband to his wife, the muslim law does not require actual vacation by the husband and an actual taking of separate possession by the wife. in the deed on hand there is an express declaration that the possession has been delivered to the wife, the deed has been handed over to, received and retained by the wife. she has been living with her husband and in the circumstances, the gift is perfectly valid.7. it is only after recording as above, he has taken notice of the doctrine of musha and declared on the basis that the donor did everything in his power to put the donee in possession and that he declared that possession had been handed over to the donee, delivered the deed and relinquished all his rights thus delivering possession to the donee.8. in one of the earliest judgments on the subject in the beginning of the present century in the case of aldbi koya v. mussa koya, ilr 24 mad. 513, there had been certain observations which created a doubt as to whether law of musha applied in the state of madras (now tamil nadu) but soon thereafter a bench of this court in case of vahzullah sahib v. boyapati nagayya, ilr 30 mad. 519, entered into this question and made a candid study in the light of the pronouncements of the courts on the subject available until then. it was a case in which the issue contested was whether, when the donor did not part with the possessions of the property comprised in the deed of gift and later he himself alienated the property to another, any right could be claimed under the gift or not. the judgment proceeded to consider the case stating as follows:'both the lower courts have held the mohammadan law inapplicable to gifts by registered instrument on the authority of certain observations of benson. j. in the case of alabi koya v. mussa koya (supra). it was held by that learned judge that section 16 of the madras civil court act did not expressly make the mohammedan law applicable to gifts, that gifts of mohammedans must be governed by justice; equity and good conscience, and that it was open to doubt whether mohammedan rule as to delivery of possession being necessary to validate the gift, was adapted to modern requirements, and whether the mode of transfer laid down as obligatory on europeans and hindus by section 123 of the transfer of property act and adopted by the parties in that case, viz., by registered instrument attested by two witness and signed by the donor, ought not, in equity and good conscience, to be held as efficacious as delivery of possession in the case of mohammadans. these observations were not necessary for the decision, as the learned judge proceeded to hold that the requirements of mohammedan law as to delivery of possession had been sufficiently complied with in that case, nor were they concurred in by mr. justice shephard who held that, assuming the mohammedan law to apply, the gift was good. on the other hand we have been referred to bawa saib v. mohomed, ilr 119 mad. 343, in which the mohammedan law was held applicable to gifts in presidency, a case which does not appear to have been cited in the this case of alabi koya v. mussa koya (supra), in that case the gift was made orally, but this fact cannot in our opinion make any difference, as if a gift is bad by mohammedan law for want of possession when made orally, there is nothing in the provisions of the registration act iii of 1877 or the transfer of property act iv of 1882 to render such gift valid when made by registered instrument. there are also earlier cases in which gifts between mohammedan law, viz., hussain v. shaik mira, ilr 13 mad. 46, nabob amiruddaula muhammad koya hussain khan bahadur amirjung v. neteri srinivasan charlu. 6 m.h.c.r. 356. under section 24 of the bengal civil courts act, 1871, the terms of which for the present purpose are substantially identical with those of section 16 of the madras civil court act iii of 1873, the mohammadan law has been applied by the privy council to gifts between mohammedans vide mohamed buksh khan v. hosseini bibi, ilr 15 cal. 684, and in the north-west provinces the same section has been expressly construed as rendering mohammedan law applicable to such gifts, see north-west province high court reports, 1874, page 2, and ibid., page 28, cited in the case of gobind dayal v. inayatullah. ilr 7 all. 775 in these two cases the courts were unanimous that mohammedan law was applicable, but there was a difference of opinion as to the grounds which it was applicable, the majority holding that in the circumstances it was applicable as rule of justice, equity and good conscience, while the minority were of opinion that question as to gift, between mohammadans were covered by the express provisions as to question regarding succession, inheritance, marriage or caste or any religious usage or institution. lastly in bombay it has been expressly held that gifts between mohammedans by registered instrument are invalid unless the requirements of mohammedan law as to possession are complied with-vide mogulsha v. mohammed sahib ilr 11 bom. 517. and ismal v. ranji sambhaji, ilr 28 bom. 682. we are therefore of opinion that mohammedan law is applicable to gifts between mohammedans even when effected by registered in strument and that the lower courts were wrong in deciding otherwise. it must however, be borne in mind that the task of discovering and applying the rules of mohammedan law to the circumstances of this country is often one of great difficulty as pointed out by garth, c.j., in the case of mullick abdool gaffoor v. muleka. iir 10 cal. 1112 and that in choosing between conflicting authorities the principles of justice, equity and good conscience must be regarded vide sheikh muhammad mumtaz ahmad v. zubaida jan, ilr 161 ia 205 and bibi khaver sultan v. bibi bukha sultan, 6 bom lr 983. assuming mohammedan law to be applicable, as laid down in chaudhri mehdi hasan v. mohammed hassan, ilr 331 ia 68, it is incumbent on a party claiming under a gift to show very clearly that the requirements of mohammedan law have been met, and consequently, if he relies on a gift without consideration, to show that there has been delivery of the thing given, so far as it is capable of delivery. the appellant has also contended on the authority of bawa saib v. mohomed (supra), that the fact of the donor of the house continuing to live in it would invalidate the gift, while on the other side we have been referred to the case of shaik ibrahim v. shaik suleman, ilr 9 bom. 146. humera bibi v. najmun-nissa bibi, ilr 28 all. 147. to which may be added the case of bibi khaver sultan v. bibi bukha sultan (supra).'9. after stating the law as above, the bench, however said,'mohammedan law being applicable, a finding is necessary as to whether the defendants nos. 1 and 2 have shown that the gift under which they claim has satisfied the requirements of that law as to transmutation of possession and otherwise. apart from the question of the continuing residence of the donor in the house, there appears to be some conflict of evidence on the point, and we direct the district judge to return a distinct finding on this issue within six weeks. seven days will be allowed for filing objections.'10. this court has, however, followed the above principle and when occasion arose in the case of jayanabibi v. jayarabi, (1950) 1 mlj 209, this court reiterated the law in these words :'the property was in the hands of tenants at the time of ext. d-8. under it, firstly the settlor reserves to himself the right to receive rents during his life-time and secondly he also undertakes to pay municipal taxes. it is contended by mr. suryanarayana, learned counsel for the appellant, that notwithstanding these two undisputed facts there was sufficient delivery of possession as required by the mohammedan law by the mere declaration to that effect in the document. it is said that the intention to deliver which is unequivocally manifested by the clause of the document.'i have delivered possession of the property to you even 'now' need not be followed up by any attornment of the tenants to the donee or by any perception of the rents and profits by her. reliance is placed by the learned counsel on the ruling of the privy council in mohamed sadic ali khan v. fakir jahan begum (1931) 62 mlj 320, and in particular on the observation at page 18 which is in these terms :'in the case of a gift by a husband to his wife their lordships do not think that the mohammedan law requires actual vacation by the husband and an actual taking of separate possession by the wife. in their opinion the declaration made by the husband followed by the handing over of the deed are amply sufficient to establish a transfer of possession.'the observation must however be understood in relation to the facts of that case which was a case of the husband and wife living together in the house at the time of its gift by the one to the other, and in the light of west, j's statement of the law relied upon by their lordships in a question which they make, namely,'that when a person is present on the premises proposed to be delivered to him a declaration of the person previously possessed puts him into possession.'moreover, the effect of acts such as the two referred to above as existing in the present case did not fall to be considered by their lordships in the ruling relied upon by the learned counsel for the appellant before me.'11. a bench of the patna high court in bibi kanig fathima v. jainarayan, : air1944pat334 has said,'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 look out 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. possession of a co-owner of a co-tenant in possession which has to be recognised by the law. i desire to observe that in almost every one of these cases which have been cited and which could be cited the importance was rightly given to the question whether possession was obtained by the donee or not.'12. a bench of the bombay high court dealt with a case in emnabai v. hajirabai, ilr 13 bom 357, in which there were two hibas, one relating to a house which, at the time of the gift and upto the death of the donor, was occupied by tenants and the other under which an undivided moiety of a house in which the donor and the donee resided (husband and wife) and to which the donor and his brother were entitled to equal shares, fell for consideration. as to the former, the bench said,'it is not in dispute that after this execution of the deed of gift, haji gazi continued to collect the rents as before and that they were entered in his books and drawn upon for family purposes in the same manner as they had always been. but in 1876 the house was transferred into the name of the wife in the municipal books ; and in 1877 the fazandari bill was made out in her name. lastly, in 1881 haji gazi had an account of the rents of the first house prepared in the name of hajirabai from 1871-72 up to date. much reliance was placed by the plaintiffs on the circumstances that the donor had continued to collect the rents as before ; but this circumstance in the case of gift from a husband to a wife may be accounted for by the husband (as the person upon whom the task would naturally devolve), collecting the rents as his wife's manager ; and slight evidence to show that such was the case may well, in our opinion, be accepted as sufficient, in a case like the present, of a formal instrument of gift accompanied by registration.'13. with respect to the second hiba, however, the court said as follows:'as to the second hiba, the subject of which was an undivided moiety of a house in which haji gazi and his wife resided and to which haji gazi and his brother were entitled in equal shares ; it was objected that it was invalid as being a gift of a 'moosha' or undivided part, in a thing susceptible of partition. the rule of mohammedan law is stated thus in the hydaya, vol. iii; p. 293 : 'that seisin in cases of gift is expressly ordained, and consequently a complete seisin is a necessary condition ; but a complete seisin is impracticable with respect to an indefinite part of divisible things, as it is impossible, in such, to make seisin of the thing given without its conjunction with something that is not given; and that is a defective seisin.' and again the shurhi viquaya : 'a gift of part of a thing which is capable of division is not valid, unless such part be divided off, so that seisin may be definite and not include anything else.' in ameeroonissa khatoon v. abadoonissa khatoon. 16 beng. l.r. 67 it was held by the privy council that 'shares in zamindaris, from the special legislation relating to them and before any partition of the land, were definite estates capable of distinct enjoyment by perception of the separate and defined rents belonging to them, and therefore, not falling within the principle and reason of the law relating to moosha.' in jiwan baksh v. imtiaz begum, ii. r 2 all. 93 in which the last case was referred to, the allahabad high court held that a defined share in a landed estate was a separate estate, and not open to the objection which attaches under mohammedan law to the gift of joint and undivided property. the landed estates in that case were zamindari villages, and the court said their view was sanctioned by the rulings of the privy council-referring, we presume, to the decision of the privy council we have already mentioned, as there is none of them, that we are aware of, in which the rule is discussed. in kasim hussain v. sharif-unnissa, ilr 5 all. 287 the donor's gift was of the one-twelfth share in a 'muaf' estate, and the court supported the gift on the ground that a gift of a 'specific share is not open to objection under mohammedan law' meaning, we apprehend, a share recognized and a separate estate capable of distinct enjoyment. in the tagore lectures for 1884 the author refers to these decisions as only applicable to the large landed estates in the north-west of india. the above decisions do not, therefore, touch the present question, viz., whether a gift by the donor of his undivided share in a house, or ordinary lands, not forming part of estates as they are found in northern india, is open to objection under mohammedan law. it was said that the rale did not apply, unless the donor retained some share of the property. the objection was taken in ameeroonissa khatoon v. abadoonissa khatoon (supra), already referred to, but not decided by the privy council, as it was not necessary, in their view of that case, to consider it. in case viii of macnagten's precedents of gifts it is assumed that a gift by one of several co-sharers of his share to a stranger is invalid. alluding to the widow's gift to the donee, the answer at the bottom of page 204 continues : 'a gift even of her own portion las one of the heirs) is invalid, that being undefined and not admitting of legal seisin.' again, in the note to case x, p. 208, the author, after alluding to the supervenient indefiniteness arising from the discovery that the donor was not the sole proprietor, says : 'it would have been otherwise had the right of a third parson been recognized to exist at the time of the gift, which would in that case have been null and void ab initio.' however in ameena bibee v. zeifa bibee, cal. wr c.r. 37, it was held, on the authority of case xiii of mecnaghten's precedents of mohammadan law, that one of two sharers in lands and houses can give over his share to the other co-sharer even before division ; and this ruling was extended by the privy council, in mohamed buksh khan v. hosseini bibi (supra), to the case of the gift by one of three co-sharers (and, therefore, of any number of co-sharers) of his share to one of the others, on the ground that not to do so would in their lordships' opinion, be refining on a refinement amounting almost to a reductio ad absurdum. in the present case the object of the gift is an undivided moiety of a house which had admittedly not been partitioned, and the donee is not a co-sharer, but a third person. the case, therefore, is not governed by any of the above judicial decisions, and falls within the rule as interpreted by the cases in macnaghten's precedents, and which we think this court ought to follow. whether such a gift is void, or only invalid, as to which there would appear to be some difference of opinion between mohammedan lawyers, is not a question which arises in this case, as there had been no partition, and defendant had not been put into possession of any specific portion of the house as her husband's share before her husband's death.'14. it seems, however, that without in any manner departing from the above rule when occasion came to decide whether on the facts of particular case, the liberal understanding of the condition of hiba under the personal law of muslims as to the delivery of possession should be zealously adhered to or for the reasons of equity and good conscience, departure should be permitted, a bench of this court in the case of fathima bivi v. bhavasa maracair : (1979)1mlj409 , has considered whether a gift of equity of redemption is possible and if such a gift is made, how to account for the delivery of possession. the bench has observed,'at one time, there was a controversy whether a gift of an equity of redemption as in this case was valid at all. we have seen that the property was usufructuarily mortgaged under ext. b-1. the first defendant's case is that it was gifted to her orally, which is possible under the muslim law, by her husband when the property was subject to the aforesaid mortgage with possession with the father of defendants 4 and 5. the question is whether a gift by a mortgagor of his equity of redemption is possible at all. as we said, delivery of possession, if understood as the sine qua non under all circumstances, of the subject-matter of the gift, then, on such a word understanding of one of the terms of a hiba, such a gift would be hit by the principle underlying it. but as observed by the judicial committee, taking possession of the subject-matter of the gift by the donee either actually or constructively is sufficient to complete the gift. therefore, sufficient inroads were made in very early times into the necessity to deliver physical possession of the subject matter of gift in order to make it a valid gift. the bombay high court, however, took a different vie w that a gift of equity of redemption where the mortgagee is in possession of the mortgaged property at the date of the gift is not valid. many of the high courts in our country took different view. it appears that even the bombay high court watered down their earlier strict view of the position as is seen from the illustration given by the author mulla in the eighteenth edition of the principles of mohammedan law at page 154. the illustration runs as follows :'a owns six immovable properties. he mortgages three with possession to m. he then makes a gift of all the six properties to d and puts him in possession of the three properties not mortgaged to m. the high court of bombay has held that in such a case the gift of all the six properties is valid...'this puritanic view of the bombay high court itself is no longer the view of that high court. further, a division bench of the calcutta high court stated in para prasanna sen v. shandi bibi, ilr (1992) cal. 68.'in british courts the mohammedan law of gift is administered as between mohammedans on the grounds of equity and good conscience...' therefore, equity made a sufficient dent upon the necessity to deliver physical possession of properties in order to make a complete and valid gift. the learned judges in the said decision continued to say :'...we are of the opinion that the right of the equity of redemption which is under consideration in this case and such similar rights which are termed in some of the decided cases as incorporeal rights, as distinguished from the corpus, may, in view of the exigencies and necessities of modern conditions and conception of legal rights of property, be subjects of a valid gift, the mode of delivery of possession varying according to nature of the right conveyed.'hidayatullah, c j. as he then was in munni v. bai abdul gani, air 1939 mp 225 in his usual style made the following observation :'...three conditions which are necessary for a valid gift under the mohammedan law are : (1) manifestation of the wish to give on the part of the donor ; (2) acceptance of the donee, either expressly or impliedly; and (3) taking of possession of the subject-matter of the gift by the donee, either actually or constructively...'dealing with the third aspect, the learned chief justice stated that delivery of possession can be made in such manner as the subject of the gift is susceptible of.another learned author tyabji on muslim law, fourth edition at page 343 reiterated what the other author stated and added that possession of the equity of redemption of immovable property in the possession of a mortgage may be transferred by the donor giving to the mortgagee notice of his having conveyed to the donee the property subject to the mortgage and permitting the donea to exercise all acts of ownership that may be exercised by the owner of the equity redemption.therefore, it follows that constructive possession of the subject-matter of the gift provided could be made out in a given case and it would be sufficient to make a hiba valid notwithstanding the fact that physical delivery of the same has not been given. it is only such possession as the subject-matter is capable of or susceptible of that could be thought of and if once such available possession is given by the donor to the donee and as a follow-up, the donee exercises rights of ownership over the property taken over by him though constructively that would be sufficient evidence to establish that there was a valid hiba as it is known in mohammedan law.'15. the law thus has gone for that instead of actual physical possession, even constructive possession of the subject-matter of the gift would do for the purpose of the validity of a hiba (gift) notwithstanding the fact of physical delivery of the same has not been given. it will, however, depend on the nature of the interest in the property which is sought to be transferred, whether in the facts and circumstances of the case, only constructive possession would be enough or actual physical possession would be required. this view has been stated by a learned single judge of this court in yusuf rowther v. yusuf rowther : (1958)1mlj14 , in these words :'it is no doubt true that delivery of possession of gifted properties is an essential condition of the validity of the gift and its operative nature under the muslim law and it would be for the donees to establish it. but the courts below have failed to appreciate the evidenciary value of the declaration by the donor which constitutes an admission as against him and those claiming under him. in ext. b-1 the donor said : ''i have by means of this document settled on you, the immovable properties...which are described hereunder which belong to me absolutely and which are in my possession and enjoyment and left them in your possession. both of you shall from this day onwards hold and enjoy in peace the gift properties with absolute right and with powers of alienation...you shall if you so desire enjoy the settlement property jointly in common or enjoy the same by dividing by metes and bounds.'the effect of a recital of this type by a donor was the subject of consideration in any early decision of the privy council reported in sheikh muhammad mumtaz ahmed v. zubaida jan, (1988) lr 16 ia 205. one of the points in controversy in that case related to the validity of a deed of gift and one of the grounds upon which the operative character of the deed was challenged was that possession had not been delivered by the donor in pursuance of the deed. sir barnes peacock who delivered the judgment of the privy council said :'in the deed of gift (the donor) declared (an admission by which usman as her heir and all persons claiming through him were bound) that she had made the donee ; that she had abandoned all connections with them ; and that the donor was to have complete control of every kind in respect thereof.'this is, therefore, authority for the position that a declaration by the donor of having parted with possession of the property was an admission and one which was binding upon those who claimed under him. this question was again before the judicial committee in mohammad sadiq alikhan v. fakhir jahan begum (1931) 62 mlj 320. the opinion of the council was delivered by sir george lowndes who said in dealing with the conditions necessary to be satisfied before a gift by a muslim could be upheld :'the second objection involves some consideration of the mohammedan law. it is not disputed that a gift of immovable proporty must ordinarily be completed by a transfer or possession and there seems to be no difference on this point between hanafi and shia law. the chief court thought it was clear that fakhr jahan had raken actual possession but it is pointed out that this was only after her husband's death. so long as baquar ali was alive she merely resided therewith him and no change seems to have been made in the method of their joint occupation. but in the first place the deed contains the statement; 'i deliver possession of the gifted property to my said wife' and this as a declaration of fact must be regarded as binding on the heirs of the donor. [see sheikh muhammad mumtaz ahmed v. zubaida jan (supra)] in their opinion the declaration made by the husband followed by the handing over of the deed, are amply sufficient to establish a transfer of possession.'these two decisions were cited to the courts below but they held that their effect was somewhat modified and that the law as laid down by them was dependent upon the special circumstances of each of those cases, relying on a decision of the bombay high court in nurbai v. abhram muhammad, : air1939bom149 . i am unable to concur in this view. the learned judges of the bombay high court distinguished the observations of the privy council which i have extracted earlier on the specific ground that in the case before them the person who challenged the deed was not claiming under the donor, but under an independent title. but this apart, there was also the further fact that on the facts proved in the bombay case those who impugned the gift had been able to establish that possession was not in fact transferred. in my judgment there are no such circumstances in the present case. the proper rule to apply here as regards the burden of proof would be to hold that the declaration by the donor of his having parted with possession was an admission binding upon the plaintiffs and the 3rd defendant which however they might by cogent evidence disprove but that in the absence of independent proof by them the presumption raised by the admission ought to suffice to support the deed.'16. the above, however, was observed in a case in which all the properties dealt with in the settlement deed were specified divided portions of properties and were in the enjoyment of the settlor till the date of the settlement and they were as per enjoyment delivered over to defendants 1 and 2. learned single judge while dealing with the objection on the plea of musha has said:'i have already set out the issues and it would be seen that this objection to the gift on the ground of musha did not figure in them ; nor was it the subject of discussion in either of the courts below. this objection is based upon the description of some of the items, conveyed under ex. b-1 as if they were undivided shares belonging to the donor. there is nothing in the evidence of the plaintiff's witnesses pointing to their reliance on this feature of the gift deed. nor was there anything suggested during the cross-examination of the defence witnesses indicating such reliance. i have already pointed out that during the course of the argument in the two courts this was not put forward as an objection to the deed. in these circumstances, i am inclined to hold that this objection even if indicated in the pleadings was really not thought to have been put forward seriously and was in any event abandoned during the proceedings anterior to the hearing before me. i am not, therefore, inclined to include this as a point on which any further evidence should be permitted to be led.'17. the above thus is a clear enunciation of the principle as to the validity of the gift in the case of undivided interest. the objection as to the hiba being invalid can be based upon the plea of musha as in the instant case and unless there is an answer to the validity on account of musha, only on a finding as to delivery of possession, a gift cannot be declared to be valid.18. according to the plaintiff, the eighth defendant was entitled to 26/35 shares in the schedule mentioned properties and he executed a deed of gift of the said individed shares only. if it is found that the plaintiff was a stranger to the family in the sense that she had no interest of her own in the estate of the eighth defendant in common with other defendants, the case will be one as indicated in the judgment of the bombay high court in the case of emnabai v. hajirabai, (supra) (second hiba) and governed by the case in macnagthen's precedents. the plaintiff, who was inducted as the wife in the house by the eighth defendant brought with her other strangers to the family viz., children of her first husband. learned single judge no doubt found that there has been a clear declaration of gift by the donor and the donor husband over the deed of gift to the donee, who accepted the gift and there being also a declaration as to the delivery of possession therein, it has to be held that the hiba was valid by delivery of possession. he has, however, held that the gift is not affected by the doctrine of musha only on this ground and not on account of the rule for which musha stands, that is, how undivided share the donor transferred to the donee viz., his second wife, who was a stranger to the family in the sense that she had no share in the property from before. in this respect, in our opinion, the learned trial judge has committed an error of law. it is a fit case for the said reason for a re-consideration of the whole matter on the evidence adduced by the parties. since this aspect of the case has not been adverted to by the learned single judge at all in the appeal, we are inclined to set aside the judgment and remit the case to the trial court for a re-hearing and disposal in accordance with law.19. taking notice, however, of the delay which has already occurred, we indicated to the parties that it was a case in which they could arrive at some amicable settlement and while other members of the undivided family, who were tenants-in-common should not be denied interest in the share of their father the second wife should also not be excluded altogether. in this attempt we found the appellants responding favourably and agreeable to a division of the properties of the eighth defendant, who is since dead in equal moiety between the plaintiffs (since the plaintiff died, her children of the first husband were added as plaintiffs) and the children of the eighth defendant from his first wife. the heirs of the original plaintiff/respondents have expressed disinclination to any amicable settlement. we have no alternative in such a situation except to remit the case to the trial court for a re-hearing and disposal in accordance with law.20. in the result, the appeal is allowed. the impugned judgment is set aside. the case is remitted to the trial court for a re-hearing and disposal in accordance with law. no costs.