JUDGMENT
Mookerjee, J.
1. The subject-matter of the litigation which has culminated in this appeal is immoveable property originally owned by a Muhammadan lady named Rasulan, who died on the 21st March 1907. The plaintiff-appellant claimed the property by right: of inheritance. The first defendant resisted the claim on the basis of a deed of gift alleged to have been executed by her on the 24th September 1904. He further asserted that the lady subsequently took from him a lease of the disputed property on the 2nd October 1904, to continue during her life-time. In the original Court, as also in the Court of Appeal below, the plaintiff challenged the deed of gift and the lease as fictitious instruments. That case, however, completely failed, with the result that the Courts below concurrently made a decree in favour of the defendant. On the present appeal, the plaintiff has challenged the decision on the ground that, even if the deed of gift be assumed to be genuine, it did not vest good title in the donee, because the deed of gift covered two properties, and as possession was delivered to the donee of one of the properties only, the gift was void in its entirety. With reference to this argument, it may be mentioned that the deed of gift comprised the share of the zemindari now in dispute, as also a dwelling-house and lands appurtenant thereto. The case for the plaintiff is that there was no delivery of the house, and that, consequently, the gift failed with respect to both the properties, though they were distinct. The point was not specifically raised is either of the Courts below, and the question whether there was delivery of the house sufficient to validate the gift thereof has not been determined by the Subordinate Judge. But it may be assumed for the purposes of the present argument that there was not such delivery of the house as is deemed essential by the Muhammadan law for the validity of a gift thereof. This assumption, however, cannot affect the title to the house which is not in controversy in this litigation.
2. The learned Vakil for the plaintiff-appellant has broadly contended that, if a gift is made on two properties, and delivery is given of one only, the gift fails in its entirety, even though the properties be distinct, but he has conceded that he has not been able to discover any authority for this singular proposition. On the other band, there are passages in the writings of Muhammadan Jurists, which directly or indirectly militate against this proposition.
3. Thus, in the Fatawa Alamgiri it is stated as follows:
If a man says to another, ‘I make a gift to you of these two houses,’ and one of them is occupied, the gift is not valid with respect to one of them. But if a man says, ‘I make a gift of this house to you and of my share in this other house,’ the gift (i.e., gift of both the house and the share in the other house) is valid. Thus it is laid down in the Khizanat-Al-Muftui.” (Fatawa Alamgiri, Cal. Ed., Vol. IV, page 530).
Again, I find the following passages in the Fatawa Qadi Khan.
(1) A man makes a gift of a house to another man and delivers it to him while it contains furniture belonging to the donor. The gift is not valid, because the thing given is occupied by something which is not included in the gift, and, therefore, the delivery is not valid.
(2) A man makes a gift of a house containing furniture, and he makes a gift of the furniture as well, and allows the donee to take possession of them. Then, afterwards, the furniture is claimed by another; still the gift of the house remains valid. Similarly, if he makes a gift of a sack along with the goods it contains, and allows the donee to take possession of them, and afterwards the sack is claimed by another man, the gift of what it contains is still valid.
(3) If a man makes a gift of a house to another, and the house contains furniture belonging to the donor, and he gives delivery of the house with what it contains, and afterwards makes a gift of the furniture, the gift of the furniture is valid, bat not that of the house…. If he makes a gift of the furniture first, and gives possession of the house along with the furniture and then makes a gift of the house also, the gift of both of them is valid ” (Fatawa Qadi Khan (1196 A.D. Lacknow Ed., Vol. II, pages 288 and 284).
4. A similar doctrine is recognised by the author of the Durr-al-Mukhtar:
If a man makes a gift, of a sack containing grains belonging to the donor, or house containing his furniture, or a horse which bears a saddle belonging to him, and he delivers them (to the donee) in that state, (he gift is not valid. But in the converse case, the gift would be valid only with respect to the grains, the furniture, and the saddle (Darr-al-Mukhtar by Al-Al-Hiskafi, 1677 A.D. Constantinople Ed., Vol. IV, page 779).
5. That these principles are firmly established in Muhammadan Jurisprudence is clear from the fact that, they were set out in a work of great authority composed at least half a century before the time of the author of the Hidayah and Qadi Khan:
If a man makes a gift of a house to another containing furniture belonging to himself (literally, belonging to the donor), and afterwards makes a gift of the furniture itself, then if he does not give delivery of possession of the house till after making a gift of the furniture, and he gives delivery of possession of the house along with that of the furniture (literally, altogether), the gift is valid. But if he makes a gift of it and gives delivery of possession of it, and then makes a gift of the furniture, the gift, (of the house) is not valid. (Khulasat-al-Fatawa by Tahir bin Ahmad-al-Bukhari, 1147 A.D.)
6. The question is also considered by Baillie in his Digest of Muhammadan Law, Second Edition, Part 1, page 527, and in his Muhammadan Law of Sale, page 259. In my opinion, it cannot be disputed, in view of the principles recognised in the texts already quoted, that if a gift is made of two distinct properties and is perfected with regard to one of them by delivery, and not with regard to the other, the gift is not void in its entirety but takes effect as to the property which has been duly delivered. The contention of the learned Vakil for the appellant to the contrary cannot be supported either upon the authorities or upon any rational ground that can be suggested.
7. The result, therefore, is that the decree made by the Subordinate Judge must be affirmed and this appeal dismissed with costs.
Carnduff, J.
8. I agree.
