The central legal point established in the judgment is the obsolescence of the doctrine of musha in Muslim Law in India and the reluctance of Indian courts to apply the doctrine, leading to its virtual removal from the legal framework.

1. Counsel arguing for admission of his second appeal has placed me under an embarrassing obligation to him because at my instance he has worked up the point raised with assiduity and academic flavour and argued it in the spirit of amicus curiae, knowing full well that this very forensic proficiency would boomerang on his client's prospects in the appeal.

2. The survival value of the doctrine of musha in the Muslim Law as applied in India is the subject mooted in the second appeal. The courts below have declined to disturb the efficacy of the gift but counsel has chosen to challenge its validity, again, here on the ground that it is one in favour of a plurality of donees of undivided shares in property which is capable of division. The facts are admitted but the question is whether Ex.1 will fail in law because the parties are Muslims who must pay the penalty of invalidation of their gifts which are musha, although their brothers in other religions in India or elsewhere in the world are free from any such curious trammel.

3. Every time an odd and dated rule of personal law is upheld in an Indian court the thought comes up that the integration of the Indian people on the legal front is being held back to some extent by the failure of courts to free the present law from the archaic rules of the many personal laws which, like ghosts with their clanking chains, stand in the path of unification of laws, and the failure of the legislatures to evolve a complete common civil code for our secular society in fulfilment of the mandate in Art.44 of the Constitution. After hearing counsel at great length I am satisfied that the doctrine of musha is more a museum piece rather than an active principle of Muslim Law in India and its application is so encumbered with exceptions or, may be, embroidered by refinements that what survives as extant law is as difficult to decipher as the moth-eaten pages of a hoary book handed over to a modern man. Indian Courts have been unwilling to abrogate the rule but equally reluctant to apply it.

4. Mulla, in his Principles of Mahomedan Law, (16th Edition), has stated that "A gift of an undivided share (mushaa) in property which is capable of division is irregular (fasid), but not void (batil). The gift being irregular, and not void, it may be perfected and rendered valid by subsequent partition and delivery to the donee of the share given to him. If possession is once taken the gift is validated". In para 160, at page 153, the learned author itemises a string of exceptions to the doctrine based upon rulings of courts. There is a cynical reference, in a brief paragraph to the "Device to get over doctrine of mushaa" suggested by the High Court of Allahabad by masking it as a sale and later putting an end to the pretence by releasing the debt. Hanafi lawyers were themselves astute to avoid the doctrine says Tyabji in his book on Muslim Law (p. 359, 4th Edn). The Madras High Court had once gone to the extent of declaring the doctrine to be opposed to justice, equity and good conscience, and not applicable at all in Madras (Vide ILR. 24 Madras 513, obiter by Benson J.) In Tyabji's view "The Courts are inclined to uphold a gift of musha i.e. of an undivided part of property, except where the omission to separate the portion of the property which is the subject of gift from the rest of it, is taken as an indication that there has been, in effect, an incomplete transfer, which would have completed by partition, had he intended to complete the gift". If certainty and rationality, in the light of social realities, is an attribute of law (which regulates property relations of the citizens of India, Muslim or non-Muslim) the sooner the doctrine of musha is declared as 'un-law' the better for the progress of society. Indeed, many decisions have suggested this view although they have not expressed so explicitly or categorically. It is comforting to notice that under Shafii and Shiite law the gift of musha is val