Hajira vs Saru Bai and Others

M.M. Pareed Pillay, J.—Plaintiff is the Appellant. She filed the suit for partition of item No. 1 property and sought for permanent injunction with regard to item No. 2. The trial Court granted injunction with regard to item No. 2 and refused to grant decree as regards item No. 1.

Plaintiff is the second wife of Abdul Karim Ismail Sait. First Defendant is his first wife and other Defendants are his children through her. The sole question to be considered in the appeal is as to whether the Plaintiff is entitled to claim partition of item No. 1 property.

It is common case that the disputed property belonged to Abdul Karim Ismail Sait. Plaintiff claims half right in the property on the strength of Ext. A-5 gift deed. Defendants challenge the validity of Ext. A-5 being gift of undivided share in a property which is capable of division. According to them, doctrine of Mushaa under Mohammedan Law applies and so Ext. A-5 has no validity.

Mushaa is an undivided share in property either movable or immovable. Hanafi Law does not recognise the gift of a Mushaa or undivided part of a thing capable of division as valid. But in a case where the part of the gifted property is divided and separated from the rest and possession of the separated property is given to donee, the prohibition under the doctrine of Mushaa will not apply. Gift of undivided property is valid where one of the donees is a minor son of the donor. Under Shafi school of law gift of Mushaa or undivided property is valid provided that possession of the subject of the gift is given to donee by the donor vacating it, or withdrawing his control and permitting donee to exercise control over it.

Recitals in Ext. A-5 show that the gift is with respect to half share in the property. The recitals also show that the donee is given the right to seek partition and get possession of her right.

A gift of an undivided share (Mushaa) in property which is capable of division is irregular (fasid), but not void (batil). Such a gift though irregular and not void can be perfected and rendered valid by subsequent partition and delivery to the donee of the share given to him. Once possession is taken by the donor, the gift is validated. Thus in a case where a donor made a gift of his undivided share in a certain property to the donee but it was subsequently separated and possession was delivered to the donee, the gift though irregular in its inception is validated by subsequent delivery of possession. See Muhammad Mumtaz v. Zubaida Jan 1889 11 All 460; Mahomed v. Gooverbai 1904 6 Bom LR 1043; Mohib Ulla v. Abdul Khalik 1908 30 All. 250; Abdul Aziz v. Fateh Mahomed 1911 33 Cal. 518 and Mofezzudin Talukdar v. Abed Ali Sheikh 1935 62 Cal. L.J. 424.

In the following cases gift of an undivided share though it be a share in the property capable of division is valid from the moment of the gift even if the share is not divided and delivered to the donee:

(1) where the gift is made by one Co-heir to Anr. ;

(2) where the gift is of a share in a semindari or taluka;

(3) where the gift is of a share in freehold property in a large commercial town;

(4) where the gift is of shares in a land company.

(See Mulla''s Principles of Mahomedan Law, 18th Edition Page 170).

The property is in Thoppumpady within the Cochin Corporation. Judicial notice can be taken of the fact that Thoppumpady is a large commercial town. Hence Ext. A-5 cannot be held to be invalid.

As Plaintiff is entitled to half share in the property she cannot be denied of the relief sought in the suit. The judgment and decree of the trial Court so far as item 1 property is concerned are set aside. The suit stands decreed in terms of the plaint in favour of the Plaintiff with regard to item No. 1 property also. The appeal stands allowed with no order to costs.