Balakrishna Ayyar, J.- Defendants 1 to 9 are the appellants. Katheeja Bi, the 10th defendant, had three sons, Abdul Razack, Abdul Subbhan and Abdul Sukoor. Abdul Razack died in 1944. Abdul Subbhan died in 1947. Under the Mahomedan Law on the death of these sons Katheeja Bi became entitled to a one-sixth share in their estates. On 17th June, 1948, she executed a deed of settlement, Exhibit A-1 whereby she gave the one-sixth share which she inherited in the estate of Abdul Razak as also the one-sixth share which she inherited in the estate of Abdul Subban jointly to plaintiffs 1 and 2. The first plaintiff, Marian Bi, it may be stated is the only daughter of Katheeja Bi and the second plaintiff is the husband of Marian Bi. On the strength of this settlement deed the plaintiffs instituted O.S. No. 81 of 1948, on the file of the Subordinate Judge, Vellore, for the partition of the estate of Abdul Razack. The suit was compromised on 23rd January, 1950 and the plaintiffs obtained for themselves the properties set out in Exhibit B-2. In September or October 1950, the plaintiffs instituted the suit, out of which the present appeal arises, for partition and separate possession of the estate of Abdul Subbhan wherein they claimed a one-sixth share on the basis of Exhibit A-1. The defendants put the plaintiffs to strict proof of the truth, validity and the execution of the settlement deed Exhibit A-1. They took the further plea that even if Exhibit A-1 is proved to be genuine and to have been executed by Katheeja Bi with complete comprehension of its contents still the settlement deed is void since it offends against various rules of Mahomedan Law. The learned Subordinate Judge ovrruled these contentions and decreed the suit as prayed for. Defendants 1 to 9 have therefore appealed. It may be mentioned here that Katheeja Bi died in 1952 while the suit was pending in the trial Court and that no one has been specifically added as her legal representatives. It seems to us that the genuineness of the settlement deed is beyond question. The evidence shows that Katheeja Bi went to the house of P.W. 1, a leading advocate of Vellore, and told him what she wanted to be done. He thereupon drafted the document Exhibit A-1 and it was typed in his office. It seems to us that the genuineness of the settlement deed is beyond question. The evidence shows that Katheeja Bi went to the house of P.W. 1, a leading advocate of Vellore, and told him what she wanted to be done. He thereupon drafted the document Exhibit A-1 and it was typed in his office. A junior of his, who has subsequently become a Judicial Magistrate, made certain corrections in the document. Thereafter it was attested by three persons one of whom was P.W. 2. P.W. 2 deposed that at the time he gave evidence both the other attestors were dead. Katheeja Bi herself presented the document for registration and it was duly registered. The next question is whether when Katheeja Bi executed the settlement deed she had a complete comprehension and full understanding of the nature of the document and the effect of the dispositions she was making. Here it must be borne in mind that a gift deed executed by a pardanashin lady stands in a peculiar position. As explained in Farid-un-nissa v. Mukhtar Ahmad1. “The real point is, that the disposition made must be substantially understood and must really be the mental act, as its execution is the physical act, of the person who makes it..................If, however, the settlor’s freedom and comprehension can be otherwise established or, if, as is the respondent’s case here, the scheme and substance of the deed were themselves originally and clearly conceived and desired by the settlor, and were then substantially embodied in the deed, there would be nothing further to be gained by independent advice. * * * * * * * They must satisfy the Court that the deed has been explained to and understood by the party thus under disability, either before execution, or after it under circumstances which establish adoption of it with full knowledge and comprehension” . See also Inche Noriah v. Shaik Allie Bin Omar2, where their Lordships observed: “ It is necessary for the donee to prove that the gift was the result of the free exercise of indepedent will. See also Inche Noriah v. Shaik Allie Bin Omar2, where their Lordships observed: “ It is necessary for the donee to prove that the gift was the result of the free exercise of indepedent will. The most obvious way to prove this is by establishing that the gift was made after the nature and effect of the transaction had been fully explained to the donor by some independent and qualified person so completely as to satisfy the Court that the donor was acting independently of any influence from the donee and with the full appreciation of what he was doing ; and in cases where there are no other circumstances this may be the only means by which the donee can rebut the presumption”. Katheeja Bi was the first plaintiff in O.S. No. 81 of 1948 on the file of the Subordinate Judge, Vellore, and P.W. 1 Mr. Krishnaswami Ayyar was her advocate. While that suit was pending Katheeja Bi sent a registered notice to Mr. Krishnaswami Ayyar which as shown by Exhibit B-1 was received on 22nd August, 1949, at his residence. That notice is said to have been mislaid and Mr. Krishnaswami Ayyar could not produce the original. But D.W. 2 deposed that he had attested that notice and that so far as he could recollect it was to this effect: Katheeja Bi did not know the contents of the settlement deed. It was in English. She was asked to sign in it and so she signed in it. She desired one-sixth share to go to her son’s sons. Mr. Krishnaswami Ayyar was asked not to go on with the case against the son’s sons. The settlement deed appeared to be in favour of her daughter. She did not want her advocate to go on with the case on her behalf. On the strength of this notice the argument was advanced that Exhibit A-1, must have been, even if genuine in the sense that Katheeja Bi actually executed it, obtained from her under circumstances that would not make it binding on her. Some fraud or deception must have been practised on her and her thumb mark obtained to Exhibit A-1. Otherwise, it was contended, such a notice would not have been issued at all. Some fraud or deception must have been practised on her and her thumb mark obtained to Exhibit A-1. Otherwise, it was contended, such a notice would not have been issued at all. Now, if the matter had rested just here and there were no other circumstances throwing light on the mind and conduct of Katheeja Bi one might probably have accepted the contention of the appellants or their part of the case. However, there are quite a number of circumstances pointing, and decisively pointing to a different conclusion. It must be borne in mind that we do not know the circumstances under which the notice referred to in Exhibit B-1 came to be sent by Katheeja Bi to Krishnaswami Ayyar. All that we knew is that about that time she was apparently living in the house of Abdul Shukoor. According to D.W. 2 it was Abdul Shukoor who sent for him to attest that notice. D.W. 2 saw Abdul Shukoor in the house in which Katheeja Bi was staying at the time she affixed her thumb mark to the notice referred to in Exhibit B-1. What influences had been brought to bear upon her at the time one does not know. But, it is perfectly clear that less than two months later Katheeja Bi sent Exhibit A-2 to Mr. Krishnaswami Ayyar completely repudiating her earlier notice. Besides she went on with the suit till it was compromised on 23rd January, 1950. Thereafter the present suit was instituted and Katheeja Bi chose to remain ex parte, which means in the context that she wanted the plaintiffs to succeed in their action. The subsequent conduct of Katheeja Bi constitutes a complete repudiation of the notice referred to in Exhibit B-1. Be it recalled that the deed of settlement was executed in 1948 and that Katheeja Bi died only in 1952, that is some four years later. Except for the solitary notice evidenced by Exhibit B-1 - and as we already stated we do not know the circumstances under which the notice came to be issued - the conduct of Katheeja Bi shows that for the remaining years of her life she stood by the settlement deed. This would never have happened if Exhibit A-1 had been obtained from her by coercion or by the exercise of undue or improper influence. This would never have happened if Exhibit A-1 had been obtained from her by coercion or by the exercise of undue or improper influence. It is also reasonably clear that at the time the document was prepared its contents must have been fully explained to her. She went to P.W. 1 and consulted him. He then pre-pared a draft in accordance with her instructions. It was typed in his office. A junior of his made certain corrections and amendments and it was thereafter that Katheeja Bi executed the document. P.W. 1 was asked whether Katheeja Bi was capable of understanding her actions at the time she executed Exhibit A-1 and whether it was read over to her and he then gave this answer: “ Yes. It must have been read over to her” . An Advocate in the position of P.W. 1 could hardly say more than this It is impossible to expect a person in his position to have specific recollection about which particular document was read over to the person concerned. Ths evidence of P.W. 2, an attestor of the document, however, makes the matter very much clearer: “ The document Exhibit A-1 was typed in Sri D. Krishnaswami Ayyar’s office. Vakil D. Krishnaswami Ayyar wrote the draft. We four were present then. At the time no one else was present. The vakil after drafting, translated the writing to us and then handed the same to his clerk and directed him to type” . There is no reason why the evidence of P.W. 2 should not be believed. Another important circumstance here is that the document was not prepared in a rush or hurry. From the village where Katheeja Bi lived with her son-in-law they went to Vellore in connection with this document. They appear to have spent at least two or three days at Vellore. It is also useful to bear in mind that if there had been any grounds for suspecting anything wrong or improper it is hardly likely that an Advocate of the standing of P.W. 1 would have proceeded further in the matter One other circumstance which is not wholly devoid of significance is this. In Tamil districts Muslims do not observe purdha with the same rigidity and strictness as in some other parts of the country. In Tamil districts Muslims do not observe purdha with the same rigidity and strictness as in some other parts of the country. Very often the purdha is a matter of form In addition it must be remembered that at the time she executed Exhibit A-1 Katheeja Bi was advanced in years and in the case of such elderly persons there would not be the same insistence on the observance of purdha as in the case of girls and of young women. Taking all the circumstances of the case we are satisfied that Katheeja Bi executed Exhibit A-1 with full understanding and comprehension of its contents and that the document did not incorporate anything which was not in accordance with her intentions. Mr. Gopalaswami Ayyangar for the appellants argued that even so the settlement must foil for these reasons. Delivery of possession is essential to validate a gift of property under the Muhamedan Law. Katheeja Bi the donor was not in possession of any part of the property at the time she purported to make the gift deed, Exhibit A-1. Since she was not in possession she could not naturally have given possession. Besides, Exhibit A-1 is a gift in favour of two persons jointly and such a gift is bad. What Katheeja Bi purported to make a gift of, was an undivided share in the estate of each of her sons and the gift of an undivided share is bad. The transaction offends against every principle of Mahomedan Law relating to mushaa. Mr. Gopalaswami Ayyangar reinforced his arguments by referring to Mussamat Bibi Bilkis v. Shtikh Wahid Ali1, where it was observed that the doctrine of mushaa is not an archaic rule of law and although not favoured, cannot be ignored or repudiated. In dealing with these arguments it is well to bear in mind the following observations of the Privy Council in Muhamad Mumtaz Ahmed v. Zubaida Jan2: “ 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” . In dealing with these arguments it is well to bear in mind the following observations of the Privy Council in Muhamad Mumtaz Ahmed v. Zubaida Jan2: “ 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” . The question whether a gift to two donees jointly is bad was considered in Ebrahim v. Bai Asi.3 We quote the relevant passage: “ There was a second argument placed before me, to the effect that ‘A gift of property, which is capable of division, to two or more persons without dividing it, is invalid ; but it may be rendered valid of separate possession is taken by each donee of the portion of the property given to him.......,I cannot accept this argument. The authority of the Fatawa Alamgiri and Hidaya is directly against it”. This view was adopted in Kaniz Fatima v. Jai Narain4. On pages 221 and 222 Manohar Lall., J., observed:- “In the case of Ebrahim v. Bai Asi3, Tyabji, J., has examined the subject at great length and I respectfully agree with his observations. I do not see why a donee of mushaa who has taken joint possession of the subject of a gift, and who finds it convenient and practicable to continue to hold that property without partition , should not be allowed to do so. All that the law is concerned to find is that before the validity of such a gift is declared, the donor must have parted with complete possession in favour of the donee, and then it is the lookout of the donee as to whether he wants a partitition or not. If the donor had partitioned the property and given it to a donee in a definite share, the donee could still hold the property as a tenant in common with his co-sharers and no question could have been raised regarding the validity of the gift. If the donor had partitioned the property and given it to a donee in a definite share, the donee could still hold the property as a tenant in common with his co-sharers and no question could have been raised regarding the validity of the gift. The same result, in my opinion, should follow provided the donee has been found to be in possession.” In Kalu Beg v. Gulzar Beg5, it was held “ When there is delivery of possession under a gift made jointly to two persons and the donees at some subsequent date either divide the property among themselves or arrange that one should have the entire gifted property, the doctrine of mushaa ceases to operate and that which was irregular in the beginning becomes valid”. So far as we are aware there is no decision of this Court directly in point. We find ourselves in respectful agreement with the views of Tyabji, J., in Ebrahim v. Bai Asi3, and of Manohar Lall, J., in Kaniz Fatima v. Jai Narain4. We would best observe that the rules of Mahomedan law do not require that to make a gift vaild the donor must have physical possession of the property and must hand over that physical possession to the donee. It is enough if he has got legal possession of the property and transfers to the donee such possession as the matter is susceptible of. In the present case when Abdul Razak died Katheeja Bi became a co-heir along with the widow and children of Abdul Razack. Similarly when Abdul Subhan died Katheeja Bi became a co-heir along with the widow and children of Abdul Subhan. The possession of one co-heir is ordinarily possssion on behalf of all. It must also be emphasised that in June, 1948, when Katheeja Bi executed Exhibit A-1 her claim to be the heir of her sons Abdul Razack and Abdul Subhan had not been challenged or called in question by any one. The possession of the other heirs was possession on her behalf also. And we may properly say that she was actually in possession of the estate. It was explained in Kaniz Fatima v. Jai Narain4. “ Possession of a co-owner or a co-tenant is a possession which has to be recognized by the law” . The possession of the other heirs was possession on her behalf also. And we may properly say that she was actually in possession of the estate. It was explained in Kaniz Fatima v. Jai Narain4. “ Possession of a co-owner or a co-tenant is a possession which has to be recognized by the law” . In Exhibit A-1 Katheeja Bi distinctly stated that thereafter she ceased to have any interest in the schedule mentioned properties and she expressly declared that the settlees "will be entitled to work out the settlor’s rights in the properties described below by taking appropriate proceedings ". The only manner in which Katheeja Bi could have got physical possession of any part of the property was by instituting a suit for partition, and, under Exhibit A-1 she armed the donees with the requisite power. In effect, therefore, she gave the donees such possession as the property was capable of. One other observation must be made. The reason for the rule that the gift of an undivided share is bad is to be found in the desire to avoid what has been described as confusion. If the property is capable of separate possession but nevertheless the donor does not separate what he intends to give from his other possessions, how is one to find out what he intended to give? And if we do not know what he intended to give, but still try to give something there is bound to be confusion. The reason of the rule is wholly absent in a case like the present where the donor gave away the entirety of her interest in the estate. It was held in Zahyran v. Abdus Salam1: " A definite share in immovable property, zamindari, houses or shops, is a separate estate with separate and defined rents. The rule mushaa, therefore, which aims at prohibiting confusion between estates gifted and not gifted is wholly inapplicable to such an estate. ................................................................................................ We may legitimately ask as was asked by Lord Machnaughten in the case of Mahomed Baksh Khan v. Hosseini Bibi2, what certain confusion can it introduce if the owner of a definite share in immovable property makes a gift of that share in favour of another person and has himself nothing left in that property after the gift ? ................................................................................................ We may legitimately ask as was asked by Lord Machnaughten in the case of Mahomed Baksh Khan v. Hosseini Bibi2, what certain confusion can it introduce if the owner of a definite share in immovable property makes a gift of that share in favour of another person and has himself nothing left in that property after the gift ? It seems to us that the only answer that can be given to this question is in the negative ". In Nazir Din v. Muhammad Shah3, Din Muhamad, J., observed:- "It will be manifest from the above that the original rigidity of the rule of Musha has been considerably relaxed in its application to British India and in almost all cases, which have come up before the Courts here as well as before the Privy Council, an effort has been made to adapt the rule to its new environments and so to interpret it as to make it consistent with the principles of justice, equity and good conscience. The Courts in this country have given effect rather to the spirit of the rule than to its letter and have upheld gifts in all cases in which the intention to give on the part of the donor had been expressed in most unequivocal terms, and had further been attended by all honest efforts on his part to complete the gift by divesting himself of the control over the property in such a manner as would clearly imply his divestiture in the eye of the law of the land. The raisen d’etre of this rule was the avoidance of gifts that were vague, indefinite or incomplete, and the only test that should be applied in such cases is whether the gift in question is open to any of those objections; or in other words, whether the donor has still reserved to himself a loop-hole of escape or not. If this is not so and if the donor has done all that the law of the land requires to be done to separate himself from the property a gift of mushaa will be as valid as that of property which can be physically handed over to the donee ". The case in Hamidullah v. Ahmedulla4, is also in point. The subject-matter of the gift there was undivided 7/32 share in 6 houses and 3 parcels of land. The case in Hamidullah v. Ahmedulla4, is also in point. The subject-matter of the gift there was undivided 7/32 share in 6 houses and 3 parcels of land. The donor was not in physical possession but only in constructive possession of the property. She executed a deed of gift and had it registered. The document recited that the donor was conveying to the donee the same sort of possession which she had. The gift was upheld. The Court observed: "She admittedly had no physical possession but was in constructive possession through the plaintiff................ She however put the donee in a position to obtain possession and it is a fact as stated in the plaint that the defendant donee instituted a suit for his share of the rents on the basis of this deed of gift.................Mst. Haliman did practically all that she was able to do in way of divesting herself of possession and giving to the donee-defendant the same possession as she had herself". In Tyabji’s Principles of Muhammadan Law (2nd Edition, page 423) the following passage appears: " The Courts are inclined to uphold a gift of ‘mushaa’, 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 the donor would have completed by partition, had he intended to complete the gift". This statement of the law was approved in Musammat Bibi Bilkis v. Sheik Wahid Ali1 and in Ebrahim v. Bai Asi2. It will be appreciated that in the present case Katheeja Bi could not have done anything more whatever to complete the gift. There are certain observations in Syed Mohideen Sahib, In re3, which are directly to point: " Two points were raised by Mr. Parthasarathy Ayyanger, learned counsel for the appellant in this case. One is that the learned Judge, Basheer Ahmed Sayeed, J., erred in law in holding that the gift by the second defendant to the plaintiff of his share in the suit property was valid. 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 Muhammadan Law. 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 Muhammadan 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. Learned counsel for the appellant did not dispute this but argued that such a division could be made only by the donor himself and relied on the decision of the Lahore High Court in Said Hassan v. Shah Hussain4. In the case before us the 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. In our opinion, if the gift is otherwise valid, in a case like this, there can be no impediment to the Court directing a partition between the donee in the right of the donor and the other sharer, the first defendant in this case". One final observation must be made and it is this. The question whether possession has been delivered is relevant only when an issue is raised between the donee or those claiming under him on the one side and the donor or those claiming under him on the other. Where a gift is otherwise proper a stranger cannot invoke the rule that the gift is bad because there has been no delivery of possession. In Kalu Beg v. Gulzar Beg5, Bose, J., observed: "I have decided in Halimbi v. Rahamatali6, that the question of delivery of possession is only relevant as between the donor and those who claim under him or her and the donee. If the donor upholds the gift then it is not open to strangers like the present defendants to question it on the ground of want of delivery of possession." We think that this is the proper way of looking into the matter. All the contentions raised by Mr. Gopalaswami Ayyangar fail. In the result, the appeal fails and is dismissed with costs. P.R.N. ------------- Appeal dismissed.