The main legal point established in the judgment is that under Mahomedan Law, a gift of an undivided share is valid if the donor completely divests himself of all rights and transfers possession to the donee, rendering the doctrine of Mushaa inapplicable.

1. The first defendant is the appellant in the Second Appeal and the point to be considered is as to whether a gift deed executed by one Moideen Haji namely, Ext.- Al is hit by the doctrine of Mushaa.

The short facts leading up to this litigation are as follows:

2. One Moideen Haji who was admittedly owning only a half share in a property, along with his brother the first defendant, executed a gift on 23-8-1930, Ext.- Al in favour of his first wife the third defendant herein, and her then existing children namely, the plaintiff and defendants 2, 4 and 5 & one Ibrayi. According to this gift-deed, he has transferred his entire half share that he had in the suit properties, in favour of his wife the third defendant and her children mentioned above. On 22-3-1934, Moideen Haji and the second defendant, one of his daughters executed a document of assignment namely, Ext.-B6 in favour of the first defendant herein for a sum of Rs. 800/-. The recitals in the document will be considered a little later in this judgment when considering the substantial question that arises for decision in this Second Appeal.

3. Now the present suit has been filed by the plaintiff, one of the children of Moideen Haji and the third defendant on the basis of the gift deed, Ext.- Al and he claims in these proceedings a partition and separate possession of his 43/468 share in the suit properties.

4. The main contention was that the gift deed is hit by the doctrine of Mushaa inasmuch as it related to a gift of an undivided share by the donor and also because of the fact that no possession was transferred by the donor to the donees. Certain other minor contentions are also raised, but as those minor contentions are not the subject-matter of this appeal, I think it unnecessary to deal more with those points.

5. Both the trial court and the lower appellate court negatived the contentions of the first defendant and held that the gift-deed, Ext. - Al was not hit by the doctrine of Mushaa. In any event, both the courts have also held that Moideen Haji has divested himself completely of all rights that he has got, by transferring in favour of the donees and therefore, there is no scope for the application of the doctrine of Mushaa.

6. Both the courts have also held that the assignment deed, Ext.- B6 is also not valid because the second defendant, who acted as the guardian of the plaintiff and her other sisters and brothers, was not competent to transfer property in Mahomedan Law. In this view, both the courts decreed the plaintiff's suit as prayed for with certain further directions.

7. Mr. Pocker, learned counsel for the appellant, attacked the findings of the two courts on all these points. On the other hand, Mr. Balakrishna Eradi, learned counsel for the plaintiff has supported the judgments of both the courts in all respects.

8. Before I go into the main points in controversy, I may dispose of one or two minor arguments raised by Mr. Pocker. Mr. Pocker contended that both the courts committed a very serious mistake in deciding the rights of parties on the basis of Mahomedan Law whereas the parties being Mophlas belonging to North Malabar there is a presumption that they are governed by Marumakkathayam Law. Prima facie this argument may appear to be correct. There are certain decisions of the Madras High Court and also of the Kerala High Court to the effect that the presumption in respect of Mophlas of North Malabar is that they are governed by Marumakkathayam Law. But in this case, there is absolutely no scope for the application of such presumption. It will be seen that even the shares claimed in the plaint are worked out on the basis of the application of Mahomedan Law and it is also alleged in the plaint that the second defendant, the sister has no right to act as the guardian of the plaintiff and his other sisters and brothers. This certainly is again a contention based upon Mahomedan Law.

9. Though these were the contentions raised in the plaint regarding