JUDGMENT 1. The events antecedent to the litigation that have led up to this appeal, may be shortly stated: one Moniruddin, died leaving a widow named Subjan, a minor son named Najibal Islam and five daughters one of whom is the present Plaintiff. In accordance with the rules of inheritance in Mahomedan Hanafia Law, the share of each of the heirs of Moniruddin would be as follows :-2 annas for the widow, 4 annas for the minor son and 2 annas for each of the five daughters. The Plaintiff, as one of the daughter of Moniruddin, claims 2 annas share as her inheritance from her father and also small fractions of shares that she says she inherited from two of her sisters. The suit is for a declaration of her title to the properties mentioned in the plaint which the Defendant, Najibal Islam, claimed to have acquired by gift from the Plaintiff and her two deceased sisters in 1896. The Plaintiff alleges that the gift set up by her brother, Najibal Islam, never took place and that if it did take place, it was invalid. The original Court held that the gift did take place and that it was valid. On appeal to the District Judge by the Plaintiff, this judgment was upheld. The Plaintiff now appeals to this Court and attacks the judgments of the two Courts below on two grounds, namely, first that the lower Courts should have held that subject of the gift, being undivided shares in a zamindari, there could not be any valid gift of such shares, in accordance with the principles regarding gift of Musha: and, secondly, that the donors had no possession over their respective shares when the alleged gift is said to have been made and hence there could not have been any delivery of possession which is a condition precedent to the validity of a gift. 2. It appears from the pleadings in the case that the gift of 1896 was a verbal one and made by all the five daughters of Moniruddin in favour of their mother, Subjan and their minor brother, Najibal Islam. It is firmly settled that under the Mahomedan law, a gift of immoveable properties can be made verbally without recourse to a written and registered document. In the case of Kamarunnissa Bibi v. Husaini Bibi I. L. R. 3 All. It is firmly settled that under the Mahomedan law, a gift of immoveable properties can be made verbally without recourse to a written and registered document. In the case of Kamarunnissa Bibi v. Husaini Bibi I. L. R. 3 All. 260 P. C. (1880).a verbal gift of landed property if followed by a transfer of possession was considered valid. Sec. 123 of the Transfer of Property Act, no doubt, requires that a gift of immoveable properties must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two wit nesses; but sec. 129 makes an exception in favour of gifts effected under any rule of Mahomedan law. We may here observe that the Courts below have held that the gift, as alleged by the Defendant, was as a matter of fact made in favour of Subjan Bibi and Najibal Islam. This is a finding of fact. 3. The first ground taken necessitates an enquiry as to whether the gift made by the five daughters of Moniruddin to their mother and minor brother, was or was not what is called Hiba-bil-Musha. The word Musha is derived from Shayun which means confusion. When a property is owned by several persons jointly and without any division, none of them can point out any specific portion of that property as his own without partnership of any of other co-sharers. If a co-sharer in such a property makes a gift of his own share without first separating it from the other share, a confusion might arise and hence the law on the subject, according to the doctrine of the Imam Abu Hanifa, is that a gift of Musha which is not capable of division is valid, but in the case where the Musha can be partitioned without any material inconvenience to the shareholders and without any material deterioration of the property a gift of Musha is invalid (Fasid) and not void (Batil). There has been a marked difference between the opinions of the Imam and his two famous disciples, Mohammad and Abu Yusuf. Generally speaking the views of the disciples are in accordance with the demands of a progressive society. 4. There has been a marked difference between the opinions of the Imam and his two famous disciples, Mohammad and Abu Yusuf. Generally speaking the views of the disciples are in accordance with the demands of a progressive society. 4. From the examples given in the books of authority on Mahomedan law, it may easily be inferred that the doctrine of Musha was applicable only to small plots of lands and houses and it does not appear that the Mahomedan jurists of that time ever contemplated the changed condition of society and the ownership of specific shares in large estates or zamindaries as known to us in this country. 5. The Alamgiri which is an authority on the subject has the following passage on Hiba-bil-Musha: '' The gift of Musha that admits of partition to two men or to a group is valid according to the two disciples (above-named) and invalid according to the Imam. But it is not void so that it avails to the establishment of property by possession." From the above authorities it follows that the Hiba-bil-Musha (gift of undivided joint property) is not void but only invalid and possession remedies that defect. 6. Majmu-a-ul-anhar (p. 345) has the following passage in regard to the view held by the Imam Abu Hanifa: " Yakub-pasha has held that if a person makes a gift to two persons of a thing which is capable of division that is an invalid Hiba; but it is not void, (Batil) according to the Imam Abul Hanifa, so, if the donees take possession, it establishes the property in them according to his saying and the Fatwah is according to it." In the case of Mohammed Mumtaz v. Zubaida I. L. R. 11 All. 460: s. c. L. R. 16 I A. 205 (1889). their Lordships of the Privy Council remarked that the doctrine relating to the invalidity of gifts of Musha is wholly unadapted to a progressive state of society and ought to be confined within strict rules. 7. In the case of Ameerunnessa v. Abedunnessa L. R. 2 I. A. 87 [1971). their Lordships of the Privy Council discussed the question, whether the objection of invalidity of a gift on the ground of Musha was applicable to shares in zamindaries for which revenue was paid separately. 7. In the case of Ameerunnessa v. Abedunnessa L. R. 2 I. A. 87 [1971). their Lordships of the Privy Council discussed the question, whether the objection of invalidity of a gift on the ground of Musha was applicable to shares in zamindaries for which revenue was paid separately. Their Lordships held that the principle of Musha did not apply to shares in an unpartitioned zamindari and it was further held that although a right to effect partition may exist, the shares in a zamindari appear from the special legislation relating to them to be capable of distinct enjoyment before partition by reception of the separate and defined rents by the holders thereof and they therefore do not fall within the principle of the law of Musha. 8. It is worthy of note that the present gift was not to any stranger. It was a gift by five of the co-sharers to two other co-sharers. In the case of Mohammad Buksh Khan v. Hosseini Bibi L. R. 15 I. A. 81 : s. c. I. L. R. 15 Cal. 684 (1888). their Lordships of the Privy Council held '' that where a property is held by several co-sharers any one of them may give his share to any one of the other co-sharers and that such a gift would not be open to the objection of Musha. It is clear, therefore, that when persons own a property jointly, any sharer may make a gift of his share in that property to any other sharer without the formality of a delivery of possession. The donee having been already in possession as a sharer does not require a formal delivery of possession in order to make the gift operative. 9. It was held in the case of Mohammed Mumtaz v. Zubaida I. L. R. 11 All. 460 : s. C.I. L. R. 16 A. 205 (1889). that a declaration by the donor in the deed of gift that possession had been given bound his heirs. In the present case in an application by the Plaintiff (Ex. A), dated the nth February 1900, it was admitted that she had made the gift in favour of the donees. No doubt there is another application (Ex. that a declaration by the donor in the deed of gift that possession had been given bound his heirs. In the present case in an application by the Plaintiff (Ex. A), dated the nth February 1900, it was admitted that she had made the gift in favour of the donees. No doubt there is another application (Ex. D.) in which the Plaintiff, while admitting the above statement alleges that she made the admission in order to save her mother-one of the donees-from a criminal prosecution which was impending against her on account of her having got her and her son's name registered for the entire share of Moniruddin. This latter application was made in July 1905, i.e., some time after the dispute between the Plaintiff and the Defendants Nos. 1 and 2. It is clear, therefore, that not only was the gift made but that the Plaintiff admitted having made it after it had been made. 10. The gift in the present case was in favour of an adult and a minor (mother and son). A gift to an adult and a minor is valid as the present developed Hanafia law disapproves of the strictness of the rule which prevents a gift simultaneously to an adult and a minor. This is shown by a device pointed out by jurists to escape from the operation of the principles of Musha; and it is the following :-'' But if the gift be to an adult and a minor, the latter being in the purvarish of the former, or to two sons, one adult and one minor, it is not valid, for possession on behalf of the minor could be taken by his guardian." However," continues the Rudd, (Ruddul Mohtar, Vol. IV, p. 783) "there is a device by which a gift jointly made to an adult and to a minor may be made validly, viz. : the entire property may be consigned to the adult and then a gift of it may be made to both. IV, p. 783) "there is a device by which a gift jointly made to an adult and to a minor may be made validly, viz. : the entire property may be consigned to the adult and then a gift of it may be made to both. In such a case the adult donee would be a trustee for the minor and possession being already vested in him as depository, the objection of Shayun would not apply as to the gift of the share of the minor." The accepted doctrine, therefore, is that there is no inherent illegality in a joint gift to an adult and a minor; the objection has its origin in a desire to prevent disputes but where the interest of the two are sufficiently specified, there can be no apprehension of any confusion or dispute. 11. We must hold, therefore, that the doctrine of Musha cannot apply to the present case; for the reason that in the first place the donors are co-sharers of the donees, in the second place the gift was made by the donors at one and the same time to the donees. This was, in essence one transaction which transferred the shares of all the sisters by way of gift to the donees and the doctrine of Musha can, therefore, have no application. 12. The next point urged on behalf of the Appellant is that the donors were, at the time of the gift, not themselves in possession of their respective shares, and hence they could not make over possession to the donees at the time when the gift is said to have been made and the gift is, therefore, invalid. With regard to this part of the case, the finding of the lower Appellate Court is to the following effect: " It is then contended that the gift was invalid for want of delivery of possession. A passage in the evidence of the widow (Subjan) is relied upon where she says that the daughters were never in possession. I do not think that I would be justified in pressing the meaning of the widow's language to a logical conclusion. The family were jointly deriving maintenance from the income of the property which was being managed for them by the gomastha. I do not think that I would be justified in pressing the meaning of the widow's language to a logical conclusion. The family were jointly deriving maintenance from the income of the property which was being managed for them by the gomastha. The daughters verbally give up all the rights to the property, then the donees thereafter actually exercised possession over the property and the son had his name registered in the public state registers. Thereafter the donors in a public and open manner acknowledge that they had transferred their rights by a gift. I am of opinion that there was such delivery of possession as in the circumstances and having regard to the nature of the property the donors were capable of." The above is a clear finding of fact to the effect that on the day of the gift the donors had possession which they transferred to the donees and subsequently acknowledged having done SO. The Appellant cannot invite us to disturb this finding of fact. 13. The gift is said to have been made in favour of the widowed mother, named Subjan and her minor son, Nazibal Islam. She obtained letters of administration to the estate of her deceased husband, Moniruddin, on behalf of her minor son, Nazibal Islam. It is reasonable to hold that she made a verbal gift of the shares which she had acquired by gift from her daughter in favour of her minor son, Nazibal Islam, and hence she treated, in her application for letters of administration, her minor on as the owner of the entire estate left by her husband. The Mahomedan law on the subject of delivery of possession in case of a gift made by one of the parents of a minor child in favour of that child is clear. In such a case, inasmuch as the parent is the de facto guardian of the minor it is not necessary that the formality of a formal delivery of possession should be resorted to. The appeal, therefore, fails and is dismissed with costs. The judgment in this appeal will govern appeal No. 1364 of 1908.