A joint gift of mushaa property by a Muslim is valid under Muslim Personal Law if the donor has parted with possession and all his right, title and interest in the property in favour of the donees.

K. MADHAVA REDDY, J.

( 1 ) THE plaintiff in O. S. No. 250 of 1962, on the file of the District Munsif, Adoni, has preferred this second appeal against the judgment and decree in A. S. No. 26 of 1965 on the file of the Subordinate Judge, Adoni. His suit for partition and separate possession of a 1/3rd share in the plaint schedule property was dismissed by the trial Court and the decision of the trial Court was confirmed by the lower Appellate Court.

( 2 ) IT is the case of the plaintiff that the plaint schedule property, which comprises of an open site adjacent to a building bearing door No. 14 in Ward No. 29 of Adoni Municipality, belonged to his father and that his father had gifted the same to him and his two brothers, defendants 1 and 2 in the suit, under a registered gift deed dated 24-10-1960. Each of the donees is in possession of the property appurtenant to his premises but for the convenient enjoyment of the same it is necessary to partition the same by metes and bounds. The Ist defendant contended that the gift deed dated 24-10-1960 did not relate to the plaint schedule site that their father had gifted only the house and thereafter under a gift deed Ex. B-1, dated 2-9-1962 he gifted the open site to defendants 1 and 2. Thus the defendants denied the plaintiffs right to a share in the plaint schedule site.

( 3 ) THE lower Appellate Court gave a categorical finding that under the gift deed, dated 24-10-1960, marked Ex. A-3, the plaint schedule site was gifted to the plaintiff and defendants jointly and that each of them had a 1/3rd share therein. It, however, confirmed the dismissal of the suit of the plaintiff by the trial Court being of the view that a joint gift is not valid under Muslim Personal Law.

( 4 ) THE only question, therefore, that arises for consideration in this second appeal in favour of his three sons jointly is valid. It is in evidence that so far as the father I. E. , the donor, is concerned, he did not retain possession of the property gifted by him under the gift deed, Ex. A-3. He parted with possession and delivered the same to the donees and therefore, he did not have any right, title or interest therein. Once the donor has parted with all his right, title and interest in the subject-matter of the gift merely because the gift was made jointly in favour of all the three donees, the gift is not void. There was no doubt a difference of opinion among the commentators on Muslim Law but the preponderance of opinion is in favour of holding the gift valid if the donor has parted with possession and the donees having entered in to possession, enjoyed the property or proceeded to enjoy the property in proportion to their respective shares. The essential element required to be satisfied for a valid gift under the Muslim Personal Law is that the donor should cease to have any right, title or interest and should have parted with possession of the subject-matter of the gift and put the donees in possession.

( 5 ) IN Mullick Abdool Guffoor v. Muleka , ILR ( 1884 ) 10 Cal 1112. Garth C. J. , observed :- " We have been referred to several authorities, and,, amongst others, to Derrul Mohhtar, Book on Gift. P. 635, which lays down that no gift can be valid unless the subject of it is in the possession of the donee at the time when the gift is made. Thus when land is in the possession of a Usurper ( or wrong-doer ), or of a lease or mortgagee, it cannot be given away, because in these cases the donor has not possession of the thing which he purported to give. But we think that this rule, which is undoubtedly laid down in several works of more or less authority, must, so far as it relates to land, have relation to cases where the donor professes to give away the Possessory Interest in the land itself, and not merely a reversionary right in it. Of course, an actual seisin or possession cannot be transferred, except by him who has it for the time being. . . . . . . . . . . . . . . . . . . What is usually called possessi

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