Judgment :- 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. 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. This certainly is again a contention based upon Mahomedan Law. 9. Though these were the contentions raised in the plaint regarding the validity of the transaction covered by Ext.- B6, there is absolutely no whisper in the written-statement of the first defendant that the parties are governed by Marumakkathayam Law. Even the first defendant proceeds to contest the suit on the shares claimed by the plaintiff only on the basis that the parties are governed by Mahomedan Law. I do not find even this point raised or argued before the trial court, nor was it raised as a ground on appeal in the lower appellate court or even in this court. Though Mr. Pocker raised it I am not dealing with this contention. In view of what I have stated above, there is absolutely no question of the presumption coming into play; because parties have proceeded and fought a litigation in all the courts on the basis that they are governed by Mahomedan Law. In fact, even in this court, the whole contention of Mr. Pocker about the validity of this document is really based upon the application of the doctrine of Mushaa in Mahomedan Law. Therefore, the argument that the parties are governed by Marumakkathayam Law, cannot be entertained. 10. One other minor contention raised by Mr. Pocker was that both the lower courts, in any event, committed a mistake in not considering the question whether Ibrayi was alive on the date of Ext. - B6. When it was brought to his notice by the learned counsel for the plaintiff that Ibrayi was also a party represented by a guardian in Ext.- B6, Mr. Pocker did not persue this argument any further. Now, we are left with the main contention regarding the validity or otherwise of Ext. - Al. 11. Mr. Pocker contended that the finding of both the lower courts regarding the powers of a defacto guardian are not sound in law. To appreciate this argument, it is desirable to give a few facts, 12. Under Ext.- B6, Moideen Haji and the second defendant, in their own right, and the second defendant as the guardian of her brothers and sisters namely, plaintiff, defendants 3 to 5 and Ibrayi, make an assignment of the properties to first defendant for a sum of Rs. 800/-. Under Ext.- B6, Moideen Haji and the second defendant, in their own right, and the second defendant as the guardian of her brothers and sisters namely, plaintiff, defendants 3 to 5 and Ibrayi, make an assignment of the properties to first defendant for a sum of Rs. 800/-. No doubt, there are certain recitals as to why the transaction is being entered into, but it is not necessary to go into that aspect in the view that I take about the legality of the second defendant acting as the guardian of the plaintiff who was then a minor and also other parties namely, defendants 3, 4, 5 and Ibrayi. In Mulla's Mahomedan Law, 14th Edition at page 300, the learned author states that the legal guardians of the property of a minor in Mahomedan Law are: (1) the father ; (2) the executor appointed by the father's will ; (3) the father's father ; and (4) the executor appointed by the will of the father's father. At page 301 of the same book, the learned author also says: "a person may neither be a legal guardian nor a guardian appointed by the court, but may have voluntarily placed himself in charge of the person and property of a minor. Such a person is called de facto guardian. A de facto guardian is merely a custodian of the person and property of the minor". At page 303 the learned author further observes: "A de facto guardian has no power to transfer any right or interest in the immovable property of the minor. Such a transfer is not merely voidable, but void". 13. These observations of the learned author have been quoted with approval by their Lordships of the Supreme Court in the decision reported in Mohd. Amin v. Vakil Ahmad (A.I.R.1952 S.C. 358). That was of a transaction entered into on behalf of a minor merely represented by her brother as the guardian. 13. These observations of the learned author have been quoted with approval by their Lordships of the Supreme Court in the decision reported in Mohd. Amin v. Vakil Ahmad (A.I.R.1952 S.C. 358). That was of a transaction entered into on behalf of a minor merely represented by her brother as the guardian. At page 360, after quoting the observations of Mulla extracted above with approval and also referring to the leading case on the subject of the Privy Council in Imambandi v. Haji Mutsadi (45 Indian Appeals 73 P. C.), their Lordships observe as follows: "It is admitted that plaintiff 3 Ishtiaq Hussan was a minor of the age of about 9 years at the date of the deed, and he was not represented as already stated by any legal guardian in this arrangement. The minor's brother had no power to transfer any right or interest in the immovable property of the minor and such a transfer if made was void". Then their Lordships also held that the test of benefit resulting from the transaction to the minor was negatived by the Privy Council and it was laid down that under the Mahomadan Law a person who has charge of the person or property of a minor without being his legal guardian, and who may, therefore, be conveniently called a'de facto guardian' has no power to convey to another any right or interest in immovable property which the transferee can enforce against the infant. In view of this decision of the Supreme Court, it is idle for Mr. Pocker to contend that a transaction relating to the minor's property entered into by his sister as guardian is valid and binding as against the minor. 14. Alternatively, Mr. Pocker contended that inasmuch as the father Moideen Haji himself will admittedly be a legal guardian under Mahomedan Law and who was a party to Ext. B6, it must be considered that Moideen Haji himself has acted as the legal guardian of the minor children and conveyed the property. It is not possible for me to accept this alternative contention either, because the recitals in the document are quite clear and are inconsistent with the contentions now advanced. B6, it must be considered that Moideen Haji himself has acted as the legal guardian of the minor children and conveyed the property. It is not possible for me to accept this alternative contention either, because the recitals in the document are quite clear and are inconsistent with the contentions now advanced. The document starts by saying that it is executed by Moideen Haji and his daughter the second defendant in their personal capacity and then there are further recitals to show that the second defendant alone is acting as guardian on behalf of her mother the third defendant and also as guardian of her minor brothers and sisters. In the face of this recital, this contention of Mr. Pocker cannot be accepted. The signatures in the document are also put by Moideen Haji for himself and by the second defendant for herself and also as guardian of the minors whom she purported to represent. Therefore, this alternative contention of Mr. Pocker also fails. 15. The last and substantial contention urged before me regarding the validity of Ext. B6 is, as already stated, based on the doctrine of Mushaa. There is no dispute that the suit properties were owned by Moideen Haji and his brother the first defendant and each of them was entitled to a half share in the property. It is also in evidence that Moideen Haji has entrusted the property to the first defendant and was realising his half share of income from the first defendant. Now the contention of Mr. Pocker is that Ext. Al is a gift of only an undivided share in a property and that no possession has passed from the donor to the donee. In view of the fact that the gift is of an undivided share, the doctrine of Mushaa in Mahomedan Law comes into play. 16. Mr. Balakrishna Eradi, learned counsel for the plaintiff, contends that the doctrine of Mushaa is obsolete and that, in any event, there is no scope for the application of that doctrine to the present case. In the present case, the donor has completely parted with the entire half share that he possessed in the suit properties and he has completely divested himself of all rights in respect of the share so gifted. Therefore, the doctrine of Mushaa does not come into play at all. 17. The doctrine of Mushaa, as the learned author Mr. In the present case, the donor has completely parted with the entire half share that he possessed in the suit properties and he has completely divested himself of all rights in respect of the share so gifted. Therefore, the doctrine of Mushaa does not come into play at all. 17. The doctrine of Mushaa, as the learned author Mr. Mulla in the 14th Edn. says, at page 146. "Mushaa is an undivided share in property either movable or immovable". 18. The learned author also says at page 138 that the three essentials of a valid gift are: (1) a declaration of gift by the donor (2) an acceptance of the gift, express or implied, by or on behalf of the donee, and (3) delivery of possession of the subject of the gift by the donor to the donee. The last requirement namely, delivery of possession, is said to be absent in this case. The question is whether Mr. Pocker is well-founded in that contention. At page 146 of his book the learned author Mulla, has quoted the observations of their Lordships of Privy Council in Muhammad Mumtaz Ahmed v. Zabaida Jan (I.L.R. XI All. 460) as follows: "The doctrine relating to the invalidity of gifts of Mushaa is wholly unadapted to a progressive state of society, and ought to be confined within the strictest rules". 19. Therefore, it will be seen that as early as 1889, the Privy Council itself took the view that the application of this doctrine must be confined within the strictest rules. 20. The learned counsel relied upon a decision of Mr. Justice Abdur Rahman reported in Said Hassan v. Shah Mussain (A.I.R.1947 Lahore 272); but in my view, that decision has no application to the present case. In that case, the donor, who himself figured as a plaintiff, challenged the gift deed executed by him. The donor was fully possessed of a property and in that property, he executed a gift of a share. The learned judge came to the conclusion that such a gift amounted to a gift of an undivided share in the land and, therefore, will be hit by the doctrine of Mushaa. But the learned judge has observed that such a gift could have been validated, if the donor himself had partitioned and delivered possession of the same subsequently. The learned judge came to the conclusion that such a gift amounted to a gift of an undivided share in the land and, therefore, will be hit by the doctrine of Mushaa. But the learned judge has observed that such a gift could have been validated, if the donor himself had partitioned and delivered possession of the same subsequently. In fact, this decision has been considered by a Division Bench of the Madras High Court consisting of the learned Chief Justice and Mr. Justice Panchapakesa Ayyar in In re Mohideen Sahib (A.I.R.1957 Mad. 436). That a gift like the one before me where the transferor has gifted away his entire rights and completely divested himself of all that he had in respect of the share owned by him along with a third party is valid, has also been held by the learned judges in the decision cited above. In fact, it will be seen, such a transaction was upheld by the learned judge who dealt with the matter in the first instance namely, Mr. Justice Basheer Ahmed Sayeed who, if I may say so with great respect, is very well-versed in the principles of Mahomadan Law. The learned judge upheld such a transaction and the matter was taken up in Letters Patent before the Division Bench consisting of the Chief Justice and Mr. Justice Panchapakesa Ayyar. The point that was raised before the learned judges was that Mr. Justice Basheer Ahmed Sayeed was wrong in upholding the gift, because it was hit by the doctrine of Mushaa. The learned judges repelled this contention as follows: "The contention was that as the donee was entitled only to an undivided share, the gift was invalid because of the doctrine of Mushaa, under the Mahommedan Law. As the learned judge observed, the prevailing view is that a gift of an undivided share which is capable of division is not void". 21. The learned judges distinguished the case Said Hassan v. Shah Hussain (A.I.R.1947 Lahore 272) on the ground that in that case, the donor himself was capable of effecting a division of the property which was in his exclusive control and possession and therefore; that decision will not apply. The learned judges further observed: "In the case before us facts are entirely different. The donor has made a gift of his entire interest to the plaintiff. The learned judges further observed: "In the case before us facts are entirely different. The donor has made a gift of his entire interest to the plaintiff. That interest was a share in a property. It will not be possible for the second defendant to voluntarily effect a division and then deliver his share to the plaintiff". 22. In this view, the learned judges upheld the judgment of Mr. Justice Basheer Ahmed Sayeed who in turn, had affirmed a similar transaction before him. To a similar effect, there is another decision of a Division Bench of the Madras High Court reported in the tame volume at page 577 namely, Duriesh Mohideen v. Madras State (A.I.R.1957 Mad. 577) by Mr. Justice Rajagopalan and Mr. Justice Rajagopala Ayyangar. It is not necessary for us to deal with the several points that arose before the learned judges, because so far as the point directly arising before me is concerned, in such a situation, the learned judges, after referring to leading textbooks on Mahomeden Law including that of Tyabji, observed as follows at page 580: "All that is needed in Mahomeden Law to make a valid gift is to complete the gift by delivery of possession to the donee, that the donor shows a clear intention on his part to divest himself in praesenti of the property and to confer it upon the donee" 23. The learned judges accept as correct the observations of Mr. Mulla to a similar effect in his text-book. In this case, it is clear from the recitals in Ext. Al that Moideen Haji has divested himself completely of all rights that he has got, by virtue of the gift deed in favour of the third defendant and her children. There was absolutely no reservation by Moideen Haji. 24. In fact, it is also in evidence that Moideen Haji delivered all the title-deeds and the rent receipts in respect of the right owned by him in the suit properties to the donees. There is also a recital in Ext. Al to the effect that it is open to the donees to take appropriate steps to get a surrender of their share from the first defendant, or to obtain it in partition in regular proceedings. In the face of these recitals and in view of the decisions referred to above with which I respectfully agree, it is idle for Mr. Al to the effect that it is open to the donees to take appropriate steps to get a surrender of their share from the first defendant, or to obtain it in partition in regular proceedings. In the face of these recitals and in view of the decisions referred to above with which I respectfully agree, it is idle for Mr. Pocker to contend that the transaction covered by Ex. Al amounts only to a gift of an undivided share and under which no possession was transferred to the donees. 25. In this view, all the contentions of Mr. Pocker fail and the Second Appeal is dismissed with costs of the plaintiff. No leave.