JUDGMENT
John Edge, Kt., C.J. and Banerji, J.
1. The property which is in question in this appeal originally belonged to one Ahmad Yar Khan and was claimed by the respondent, his widow, by right of inheritance to him. The appellant is one of the sons of Ahmad Yar Khan, and he resisted the claim on the allegation that by an instrument dated the 22nd of May 1890, Ahmad Yar Khan had sold the property to him and his mother.
2. The Subordinate Judge has held the instrument of the 22nd of May 1890, to be a deed of gift, although ostensibly it is a sale-deed, and he is of opinion that the gift is invalid by reason of musha, and also because possession was not delivered by the donor. He has accordingly decreed the claim.
3. Mr. Abdul Majid, on behalf of the appellant, has not questioned the finding of the Subordinate Judge that the deed of the 22nd of May 1890, is a deed of gift. He contends that the grounds on which the gift has been held to be invalid are untenable.
4. Upon the question of musha the ruling of their Lordships of the Privy Council in Ameeroonissa Khatoon v. Abedoonissa Khatoon L.R. 2 I.A. 87, is conclusive so far as the zamindari property is concerned. It was held by their Lordships in that case that the rule of Muhammadan law that a gift of musha is invalid does not apply to definite shares of zarnindaris. As regards property other than shares in zamindaris claimed in the suit, if possession was taken under the gift, it would have the effect of transferring ownership, although the gift might be invalid on the ground of muska. This was held by the Privy Council in Sheikh Muhammad Mumtaz Ahmad v. Zubaida Jan L.R. 16 I.A. 205 : S.C. I.L.R. 11 All. 460. We may observe that Mr. Conlan, on behalf of the respondent, frankly conceded that he could not support the judgment of the Court below on the ground of musha.
5. As for possession, the case of the appellant in the Court below was that for about a year before the date of the gift he was in possession, and that the deed of the 22nd of May 1890, only gave formal effect to the transfer which had already been made. The Subordinate Judge has held that this allegation has not been established, and Mr. Abdul Majid has not attempted in this Court co show that the finding is incorrect. His contention is that, having regard to the nature of the property, the authority to take possession followed by subsequent possession was sufficient to validate the gift, and he has relied on the rulings of the Privy Council in Mahomed Buksh Khan v. Hosseini Bibi L.R. 15 I.A. 81 and Sheikh Muhammad Mumtaz Ahmad v. Zubaida Jan L.R. 16 I.A. 205 : S.C. I.L.R. 11 All. 460.
6. In the first of these cases their Lordships observed: “The gift was attended with the utmost publicity, the hibbanama itself authorises the donees to take possession, and it appears that in fact they did take possession. Their Lordships hold under these circumstances that there can be no objection to the gift on the ground that Shahzadi (the donor) had not possession, and that she herself did not give possession at the time” (p. 215). In the other case their Lordships held that where the donor “had merely proprietary, not actual, possession of the greater portion of the property, that is to say, she was merely in receipt of the rents and profits,” a declaration in the deed of gift that “she had made the donee possessor of all properties given by the deed; that she had abandoned all connection with them; and that the donee was to have complete control of every kind in respect thereof,” followed by actual possession, rendered the gift effectual (p. 215). Their Lordships further held that a declaration by the donor of the kind referred to above was an admission binding on the heirs of the donor.
7. We are of opinion that these rulings support Mr. Abdul Majid’s contention. The deed of gift in this case was executed on the 22nd of May 1890. It was registered on the 24th of that month, and Ahmad Yar Khan, the donor, died on the 25th. The deed recites: “I have placed the aforesaid vendees in proprietary possession of the aforesaid property as my representatives.” This was an admission which, according to their Lordships of the Privy Council, was binding on the respondent, who is one of the heirs of Ahmad Yar Khan. The deed of gift is in the possession of the appellant. Mutation of names has been effected in his favor, and it is admitted in the 4th paragraph of the plaint that it was obtained on the basis of the alleged gift. He is admittedly in possession, and the greater portion of the property was property of which the donor was in receipt of rents and profits only. The rule laid down by the Privy Council in the cases referred to above fully applies to the facts of this case, and the gift in favour of the appellant was therefore a valid and effectual gift. We allow this appeal, and, setting aside the decree of the Court below, dismiss the respondent’s claim as against the appellant with costs. We dismiss the objections with costs.
