JUDGMENT Das, J. - This is an appeal by the Plaintiffs in a partition suit from a decision of the Additional District Judge of Alipore modifying the decree of the Subordinate Judge by reducing the shares of the Plaintiffs declared by the original decree. The facts are shortly as follows: One Sheikh Hosseini died leaving the properties in suit and two sons and two daughters surviving him. One of the sons Miajan, has since died, leaving a number of heirs including the Plaintiffs. The Plaintiffs therefore became entitled to certain shares out of the share of Miajan. They also claimed that their two aunts, Balaton and Heaton, had sold their respective shares in the joint estate to them by a kobala. They further claimed that by a hiba their grandmother, the widow of Sheikh Hosseini, and their paternal uncle, Ramjan, had transferred their respective interests to them. In the aggregate, therefore, the Plaintiffs between them claimed 14 as.-11 gds.-2 karas and 2 krantis shares in the joint estate. The trial Court decreed the suit in favour of the Plaintiffs, declaring that they were entitled to the total share they claimed. The learned Subordinate Judge held that the kobala from the two ladies as also the hiba from the grandmother and the paternal uncle were valid and effective. An appeal was taken by some of the Defendants. The learned Additional District Judge held that the kobala was a valid transaction and the shares of the two ladies passed to the Plaintiffs. As regards the hiba, the lower Appellate Court held that it was invalid, because one of the two persons to whom it was made, namely, the Respondent No. 2 before him, was a minor, and that the transfer of possession was not made to his guardian. In the result, he declared that the Plaintiffs were entitled to their own original shares and the shares of the two ladies under the kobala and thereby modified the decree of the trial Court. 2. The present appeal is against the decision of the Additional District Judge. The only question argued before us is as to the validity of the hiba. It is conceded that the hiba would be invalid if there was no transfer of possession to the guardian of the infant donee. 2. The present appeal is against the decision of the Additional District Judge. The only question argued before us is as to the validity of the hiba. It is conceded that the hiba would be invalid if there was no transfer of possession to the guardian of the infant donee. The learned lower Appellate Court did not accept the evidence of Plaintiff No. 1 about his having taken possession on behalf of his minor brother as his de facto guardian. In the hiba both the Plaintiffs were described as persons having attained majority, and it is obvious that no attention was paid to the fact that one of the donees was an infant. That being so, it is extremely unlikely that anybody would think of the necessity of taking possession on behalf of the infant. Mr. Chakravarty eventually conceded that he could not support the gift in so far as the infant Plaintiff was concerned. Mr. Chakravarty, however, contended that the mere fact that the gift was not valid as regards one of the donees was no reason for holding that the gift to the other donee must also fail, and he submitted that the decree should be modified by declaring that the hiba to Plaintiff No. 1 was valid. 3. The learned Advocate for the Respondents relied on the provisions of Mahomedan Law and contended that the whole gift must be held to be invalid. On this, three points were taken. First of all, it was contended that the gift was his heirs by the doctrine of Musha as summarised in Art. 134 of Sir Dinshaw Mulla's book on Mahomedan Law. In the second place, the gift being to two or more persons without dividing the property was invalid under the principles set forth in Art. 135 of the same treatise. Thirdly, the gift was bad, because there was no delivery of possession by the donors to the donee. 4. As regards Musha, Mr. Chakravarty has drawn our attention to the observations of the Judicial Committee in the case of Muhammad Mumtaz v. Zubaida Jan L. R. 16 I. A. 205 at p. 215: s. c. I. L. R. 11 All. 460 (1889) to the effect that this doctrine should be strictly limited in its operation. 4. As regards Musha, Mr. Chakravarty has drawn our attention to the observations of the Judicial Committee in the case of Muhammad Mumtaz v. Zubaida Jan L. R. 16 I. A. 205 at p. 215: s. c. I. L. R. 11 All. 460 (1889) to the effect that this doctrine should be strictly limited in its operation. He further contended that the gift here was made by two of the co-sharers to two other co-sharers, and accordingly the gift came within the first exception to the doctrine of Musha. Mr. Chakravarty pointed out that the expression "co-heir" used by Sir Dinshaw Mulla in Exception (1) was much too wide and was not supported by the authorities on which that exception had been based. We have been referred to Case XIII in Macnaughten's Precedents of Muhammadan Law at page 212. There the question was formulated in these terms: Two persona are joint proprietors of an estate. The one makes over to the other the proprietory right to his share. Does the circumstance of the donors having a joint interest invalidate the transfer. 5. In that case the expression "co-heir" was not used. This case was followed in the case of Musst. Ameena Bibee v. Musst. Zeifa Bibee 3 W. R. (Civil Rulings) 37 (1865), where it was held that according to the Mahomedan Law, one of two sharers can give over his share to the other even before partition. The principles laid down in these two cases were further extended by the Judicial Committee in the case of Mahomed Buksh Khan v. Hosseini Bibi L. R. 15 I. A. 81: s. c. I. L. R. 15 Cal. 684 (1888), their Lordships observed as follows: But it appears to be settled by Mahomedan Law that if there are two sharers of property, one may give his share to the other before division. That seems to be established by a passage in Macnaughten's Precedents, (Case XIII, which was adopted in the case to which Mr. Mayne referred, of Ameena Bibee v. Zeifa Bibee 3 W. R. (Civil Rulings) 37 (1865). 6. Their Lordships went on to observe that if one of two sharers might give his share to the other, there was nothing to prevent one of the three giving his share to either of the other two. Mayne referred, of Ameena Bibee v. Zeifa Bibee 3 W. R. (Civil Rulings) 37 (1865). 6. Their Lordships went on to observe that if one of two sharers might give his share to the other, there was nothing to prevent one of the three giving his share to either of the other two. It is quite clear from the authorities that no particular stress was laid on the donor and the donee being actually co-heirs. For the purpose of the exception it would be enough if the donor and the donee are co-sharers or joint proprietors. 7. Mr. Chakravarty also drew our attention to the terms of the deed itself and contended that it was in fact not a deed of gift pure and simple, but that it was a transfer for consideration, therein mentioned. It appears from the deed that the donors were being looked after and cared for by the donees, and it is stated that in consideration of the past services rendered and being pleased with them for their having agreed to continue to maintain the donors and to provide them with clothes, the donors transferred their interest to the donees. The point now raised by Mr. Chakravarty was, however, not raised in either of the Courts below, and it was objected on the other side that he should not now be allowed to take this point. The point raised depends not on any disputed questions of fact, but arises on the face of the document itself, and we do not think that it would be right to shut out the Appellants from relying on this point. After reading the document, we are of opinion that the contention of Mr. Chakravarty is not wholly unfounded. Therefore, both on the ground that the hiba constituted a transfer made by two joint proprietors to two others, and also on the ground that it was a transfer for consideration, we are prepared to hold that the deed is not hit by the doctrine of Musha. 8. The next point urged by Mr. Choudhury on behalf of the Respondents was, as I have said, that the gift was of property which was capable of division, and it was made to two or more persons without dividing it, and therefore it was invalid according to the principles laid down in Art. 135 of Sir Dinshaw Mulla's edition of Mahomedan Law. Choudhury on behalf of the Respondents was, as I have said, that the gift was of property which was capable of division, and it was made to two or more persons without dividing it, and therefore it was invalid according to the principles laid down in Art. 135 of Sir Dinshaw Mulla's edition of Mahomedan Law. First of all, it would seem that this rule does not apply to the cases mentioned in the exceptions to the doctrine of Musha as summarised in Art. 134. We have already held that the gift came within Exception (1). Further, our attention has been drawn to the case of Ebrahim Alibhai Akuji v. Bai Asi I. L. R. 58 Bom. 254 (1933). In that case Mr. Justice Tyabji, after referring to the reported decisions and certain texts from text books, held that a gift to two or more donees jointly was valid, notwithstanding that the donor had not divided the shares of the donees, nor given separate possession to them. No authority has been cited before us to enable us to hold that the decision of Mr. Justice Tyabji is in any way incorrect. We accordingly hold that the second objection of Mr. Choudhury fails. 9. The last objection urged by Mr. Choudhury was that possession had not in fact been delivered by the donors to the donees. It appears that the donors and the donees were all living in the premises. The trial Court, while finding that there was no transfer of possession, physically, found that the deed of gift itself contained declarations made by the donors in unequivocal language that they divested themselves of their share of ownership in the premises, and that they further authorised the donees to possess the property in their share of ownership. The lower Appellate Court also agreed with the views of the trial Court on this point. The lower Appellate Court referred to the case of Abdul Razak Saib v. Zainab Bi 141 I. C. 843 (1932): s. c. A. I. R. [1933] Mad. 86. In that case Mr. The lower Appellate Court also agreed with the views of the trial Court on this point. The lower Appellate Court referred to the case of Abdul Razak Saib v. Zainab Bi 141 I. C. 843 (1932): s. c. A. I. R. [1933] Mad. 86. In that case Mr. Justice Madhavan Nair, as he then was, after referring to the various decisions on the subject, set forth his conclusions (at page 91 of the A. I. R. report) as follows: Having regard to the decisions which I have discussed, my conclusions so far as they relate to this case are these: (a) that a gift of immovable property under Mahomedan Law is invalid in the absence of delivery of possession by the donor; (b) where the donor and the donee live together at the time of the gift in the gifted property, there must be some evidence, to show that possession was transferred toy the donor; (1) a mere registered deed evidencing the gift will not be evidence of such transfer; but (2) if the deed shows that possession was intended to the transferred and that the donee has been put in possession also, then effect should be given to this intention as constituting delivery of possession in law, unless there is evidence to the contrary. In such a case it is not necessary far the donor to do any overt act to complete the gift. 10. Mr. Choudhury has not referred us to any evidence to show that after the date of the hiba the donors exercised any act of ownership or possession in respect of their share in the estate. The learned Subordinate Judge also referred to the case of Firm Baldeo Prasad-Balgovind v. Musammat Shubratan 164 I. C. 720 (1936). In that case Mr. Justice Niamat-Ullah held that under the Mahomedan Law all that is required as regards delivery of possession in cases of gift is that the donor should clearly divest himself of his ownership in the subject-matter of the gift and should deliver such possession as the subject-matter of the gift admits of. In that case Mr. Justice Niamat-Ullah held that under the Mahomedan Law all that is required as regards delivery of possession in cases of gift is that the donor should clearly divest himself of his ownership in the subject-matter of the gift and should deliver such possession as the subject-matter of the gift admits of. Where a house is in actual occupation of the donor and the donee, who are related, and the donor declares in unequivocal language that he has divested himself of ownership and authorises the donee to take possession, the character of the donee's possession, which already existed, is altered, and for all formal purposes the gift must be considered to have been perfected by such delivery of possession as was feasible in the circumstances. In the case before us the deed itself unequivocally transfers the title as well as possession and authorises the donee to remain in possession of the property. We agree with both the Courts below that the language used in the deed constitutes such possession as is necessary under the Mahomedan Law to perfect the gift. Further, if the deed was for consideration as we have held it to be, the question of delivery of possession does not arise. 11. The result, therefore, is that the decree of the lower Appellate Court should be modified as follows: The joint shares declared in favour of the Plaintiffs in the decree of the lower Appellate Court should be increased by a half share of the interest of Ramjan and Bibia Bibi under the hiba, Exhibit 3, dated the 17th of October, 1936. The shares of the Defendant or Defendants will be correspondingly modified. Parties will bear their own costs up to the stage of the preliminary decree in all Courts. Biswas, J. I agree.