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PETITIONER: VALIA PEEDIKAKKANDI KUTHEESSA UMMAAND OTHERS

       Vs.

RESPONDENT: PATHAKKALAN NARAVANATH KUMHAMUAND OTHERS

DATE OF JUDGMENT: 23/08/1963

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. SARKAR, A.K. SHAH, J.C.

CITATION:  1964 AIR  275            1964 SCR  (4) 549

ACT:    Mahammadan   Law--Gift--Validity  of gift by  husband  to his minor wife accepted on her behalf by her mother.

HEADNOTE: One Mammotty was married to Seinaba and he-made a gift 550 of his properties including immovable property to Seinaba by a registered deed.  Mammotty died without an issue more than two  years after the execution of the gift deed.  Later  on, Seinaba also died without leaving an issue.  At the time  of gift,  Seinaba  was  fifteen  years  and  nine  months  old. Mammotty  was iII for a long time and was in  hospital.   He was  discharged uncured a month before the execution of  the gift  deed  and  he remained in  his  mother-in-law’s  house afterwards.     After the death of Seinaba, the present suit was brought by Kunharnu, an eider brother of Mammotty, for partition and possession of 6/16 share of the property which he claimed as an  heir  under Muhamrnadan law, challenging  the  gift   as invalid.  Kunhamu’s  contention  was  that  when  succession opened out on the death of Mammotty, his widow was  entitled to   one-fourth share and the remaining  three-fourth  share was divisible between him and his two sisters.  These shares were unaffected by the in-. valid gift in favour of  Seinaba and accepted on her behalf by her mother.  The contention of Kunhamu was accepted by all the three  courts  below   which held  that  a gift by the husband to his minor  wife  to  be valid must be accepted on her behalf by a legal guardian  of her property under Muhammadan law i.e. by the father or  his executor or by grand-father or his executor.  As the  mother of  Seinaba  was not the legal guardian of the  property  of Scinaba,  the  gift was void.  The appellant  came  to  this Court by special leave.     Held, that under Muhammadan law a gift by a husband   to his minor wife of immovable property accepted on her  behalf by  her  mother  is valid if none of the  guardians  of  the property of the minor is available provided there is a clear and  manifest  intention to make the gift  and  the  husband divests  himself  of  the ownership and  possession  of  the property.

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   Held  further,  on  facts  the  above  conditions   were satisfied in this case.    Mohammad Sadiq Ali Khan v. Fakir Khan (1932) L.R.59  I.A. 1,  Nabi Sab v. Papiah and Ors. A.I.R. 1915 Mad. 972,  Nawab fan  v.  Safiur Rahman, A.I.R. 1918 Cal. 786, Munni  Bai  v. Abdul  Gani, A.I.R. 1959 M.P. 225, Mt. Fatma v.  Mt.  Autun, A.I.R. 1944 Sind. 195,  Mst. Azizi v. Sona Mir, A.I.R.  1962 J.  & K. 4, Mareroad & Ors. v. Kunhali & Ors.,  1962  K.L.J. 351,  Md. Abdul Ghani v. Mt. Fakir Khan (1962) 49 I.A.  195, Suna Mia v. S.A.S. Pillai, (1932) 11 Rang. 109 and Musa Miya v. Kadar Bux, I.L.R. 62 Bom. 316, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 513 of 1961.     Appeal  by  special leave from the  judgment  and  order dated  June  23, 1960, of the Kerala High  Court  in  Second Appeal No. 103 1957. 551     S.T. Desai and V.A. Seyid Muhmmad, for the appellants.     Sardar Bahadur, for the respondents.  August  23, 1963.  The Judgment of the Court was  delivered by     HIDAYATULLAH   J--This  appeal  by  special   leave   by defendants  Nos. 1 to 3 raises an important  question  under the Muhammadan Law, which may be stated thus: "Is  a gift by a husband to his minor wife and  accepted  on her behalf by her mother valid P"     It has been held by the High Court and the courts  below that  in  Muhammadan Law such a gift is invalid.  The  facts leading up to this question may now be stated.     One  Mammotty was married to Seinaba and he made a  gift of his properties including immovable property to Seinaba on April 7, 1944 by a registered deed. Mammotty died on May  3, 1946 without an issue. Seinaba also died soon afterwards  on February 25, 1947, without leaving an issue.  At the time of the gift Seinaba was 15 years 9 months old.  It appears that Mammotty was ill for  a long time and was in hospital and he was  discharged uncured a month before the execution of  the gift  deed  and  remained  in  his  mother-in  law’s   house afterwards.  There are conflicting versions about the nature of  the  disease and a plea was taken in the case  that  the gift  was made in contemplation of death and  was  voidable. This plea need not detain us because the trial Judge and the first Appellate Judge did not accept it.     After the death of Seinaba, the present suit was brought by  Kunhamu an eider brother of Mammotty for  partition  and possession of a 6/16 share of the property which he  claimed as an heir under  the  Muhammadan Law, challenging the  gift as  invalid.  To  the  suit he joined  his  two  sisters  as defendants who  he  submitted were entitled to a 3/16  share each.   He  also submitted that the first  three  defendants (the  appellants) were entitled to the remaining 4/16  share as  heirs of Seinaba. In other words,  Kunhamu’s  contention was  that  when  succession  opened  out  on  the  death  of Mammotty,  his  widow Seinaba was entitled to  the  enhanced share  of 1/4 as there was no issue, and the  remaining  3/4 was divisible between 552 Kunhamu  and his two sisters, Kunhamu getting twice as  much as  each  sister,   These  shares  according  to  him   were unaffected  by  the invalid gift in faVour  of  Seinaba  and accepted  on her behalf by her mother.  This contention  has been  accepted and it has been held in this case in all  the

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three courts that a gift by the husband to his minor wife to be valid must be accepted on her behalf by a legal  guardian of her property under the Muhammadan Law, that is to say, by the  father  or his executor or by the grand-father  or  his executor.   As  Katheesumma the mother of Seinaba was not  a legal guardian  of  the property of Seinaba it was contended by the plaintiff that the gift was    void.  It was admitted on behalf of the plaintiff that  Mammotty could have himself taken  over possession of   the property as the guardian  of his minor wife; but it was submitted that such was not   the gift   actually made. These contentions raise  the  question which we have set out earlier in this Judgment.   Mr. S.T. Desai on. behalf of the appellants contends  that neither  express  acceptance nor transfer of  possession  is necessary  for the completion of a gift, when the  donor  is himself  the  guardian or the de-facto guardian  or  ’quasi- guardian’  provided there is a real and bona fide  intention on the donor’s part to transfer the ownership of the subject matter  of the gift to the donee, and that even a change  in the  mode  of enjoyment is sufficient evidence  of  such  an intention.   He  further  contends  that  no   delivery   of possession is necessary in a gift by a husband to his  minor wife  provided  such  an intention  as  above  described  is clearly manifested.  According to him, the law is  satisfied without  an apparent change of possession and  will  presume that the subsequent holding of the property was on behalf of the minor wife.  Lastly he submits that  in any view of  the matter when a husband makes a gift to a minor wife and there is no legal guardian of property in existence, the gift  can be  completed by delivery of the property to and  acceptance by any person in whose control the minor is at the time.  If there  is no such person one can be chosen and appointed  by the  donor to whom possession can be made over  to  manifest the  intention of departing from the property  gifted.   Mr. Desai  seeks  to justify these submissions on  authority  as well as by de-   553 ductions   from  analogous  principles  of  Muhammadan   Law relating to gifts to minors which are upheld though accepted by persons other than the four categories of legal guardian. The other side contends that there is no rule of  Muhammadan Law  which permits such acceptance and that the decision  of the High Court is right.      A gift (Hiba) is the conferring of a right of  property in something specific without an exchange (ewaz).  The  word Hiba literally means the donation of a thing from which  the donee may derive a benefit. The transfer must be’  immediate and   complete   (tamlik-ul-’ain)  for  the  most  essential ingredient of Hiba is the declaration "I have given".  Since Muhammadan  Law views the law of gifts as a part of the  law of contract there must be a tender (ijab) and an  acceptance (qabul)  and  delivery  of possession  (qabza).   There  is, however,  no  consideration and this fact coupled  with  the necessity  to transfer possession immediately  distinguishes gifts from sales.     In the present case there is a declaration and a  tender by  the  donor Mammotty and as the gift is by  a  registered deed  no  question in this behalf can arise.  In so  far  as Mammotty was concerned there was delivery of possession  and the  deed  also  records  this  fact.   Possession  was  not delivered to Seinaba but to her mother, the first appellant, and  she  accepted the gift on behalf of  Seinaba.  Mammotty could  have made a declaration of gift and taken  possession on behalf of his wife who had attained puberty and had lived with  him, for after the celebration of marriage  a  husband

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can receive a gift in respect of minor wife even though  her father  be  living;  (Durrul-Mukhtar, Vol. 3  p.   104   and Fatawa-i-Alamgiri Vol. 5 pp. 239-240 original text quoted at p.   455  of  Institutes of Mussalman  Law  by  Nawab  Abdur Rehman). But Mammotty did not complete his gift in this way. His gift included immovable properties and it was   accepted by  the mother  who took over  possession on  behalf of  her minor daughter.  A gift to a minor is  completed  ordinarily by  the  acceptance of the guardian of the property  of  the minor Wilayat-ul-Mal. A mother can exercise guardianship  of the  person  of  a minor daughter (Hizanat)  till  the  girl attains  puberty after which the guardianship of the  person is that of the father if the girl is un- 36--2 S.C. India/64 554 married  and that of the husband if she is married’ and  has gone to her husband.  Even under the Guardian and Wards Act, the husband is the guardian of the  person after marriage of a  girl unless he is considered unfit. The mother  was  thus not the guardian of the person of Seinaba.     Seinaba’s mother was also not a guardian of the property of  Seinaba.   Mahammadan Law makes  a  distinction  between guardian  of  the  person,  guardian  of  the  property  and guardian  for the purpose of marriage  (Wilayat-ulNikah)  in the  case of minor females.  Guardians of the  property  are father  and  grandfather  but they  include  also  executors (Wasi) of these two and even executors of the executors  and finally the Kazi and the Kazi’s executor. None of these were in existence except perhaps the Civil Court which has  taken the place of the Kazi.     Now  Muhammadan Law of gifts attaches  great  importance to  possession or seisin of the property   gifted  (Kabz-ul- Kamil)  especially of immovable property.  The  Hedaya  says that  seisin in the case of gifts is expressly ordained  and Baillie  (Dig. p. 508) quoting from the Inayah refers  to  a Hadis   of  the  Prophet--"a  gift  is  not   valid   unless possessed".  In the Hedaya it is stated--"Gifts are rendered valid by tender, acceptance and seisin" (p. 482) and in  the Vikayah "gifts are perfected by complete seisin" (Macnaghten 202).     The  question is whether possession can be given to  the wife’s mother when the gift is from the husband to his minor wife and when the minor’s father and father’s father are not alive and there is no executor of the one or the other.   Is it absolutely necessary that possession of the property must be  given  to a guardian specially to be  appointed  by  the Civil  Court ?  The parties are Hanafis. No direct  instance from the authoritative books on Hanafi law can be cited  but there is no text prohibiting the giving of possession to the mother.   On the other hand there are other  instances  from which a deduction by analogy (Rai fi ’l qiyas) can be  made. The  Hanafi  law  as  given in  the  Kafaya  recognises  the legality of certain gifts which custom (’urf) has  accepted. This is because in deciding questions which are not  covered by  precedent  Hanafi  jurisprudence  attaches  to  transfer possession immediately distinguishes gifts from sales.     In the present case there is a declaration and a  tender by  the  donor Mammotty and as the gift is by  a  registered deed  no  question in this behalf can arise.  In so  far  as Mammotty was concerned there was delivery of possession  and the  deed  also  records  this  fact.   Possession  was  not delivered to Seinaba but to her mother, the first appellant, and  she  accepted the gift on behalf of  Seinaba.  Mammotty could  have made a declaration of gift and taken  possession on behalf of his wife who had attained puberty and had lived

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with  him, for after the celebration of marriage  a  husband can receive a gift in respect of minor wife even though  her father  be  living;  (Durrul-Mukhtar, Vol. 3  p.   104   and Fatawa-i-Alamgiri Vol. 5 pp. 239-240 original text quoted at p.   455  of  Institutes of Mussalman  Law  by  Nawab  Abdur Rehman). But Mammotty did not complete his gift in this way. His gift included immovable properties and it was   accepted by  the mother  who took over  possession on  behalf of  her minor daughter.  A gift to a minor is  completed  ordinarily by  the  acceptance of the guardian of the property  of  the minor Wilayat-ul-Mal. A mother can exercise guardianship  of the  person  of  a minor daughter (Hizanat)  till  the  girl attains  puberty after which the guardianship of the  person is that of the father if the girl is un- 36--2 S.C. India/64                             555 based  on  istehsan (liberal construction ;  lit.  producing symmetry) and istislah (public policy).  The Prophet himself approved  of Mu’izz (a Governor of a province who was  newly appointed) who said that in the absence of guidance from the Koran  and Hadis he would deduce a rule by the  exercise  of reason.   But to be able to say that a new rule  exists  and has always existed there should be no rule against it and it must flow naturally from other established rules and must be based on justice, equity and good conscience and should  not be  haram  (forbidden), or Makruh (reprobated).   It  is  on these principles that the Mujtahidis and Muftis have allowed certain  gifts  to  stand  even  though  possession  of  the property was not handed over to one of the stated  guardians of the property of the minor.  We shall now refer to some of these cases. The rules on the subject may first be recapitulated.  It  is only  actual or constructive possession that  completes  the gift and registration does not cure the defect nor is a bare declaration in the deed that possession was given to a minor of any avail without the intervention of the guardian of the property   unless  the  minor  has  reached  the  years   of discretion.   If  the  property is with the  donor  he  must depart  from  it and the donee must enter  upon  possession. The  strict  view was that the donor must not  leave  behind even  a  straw belonging to him to show  his  ownership  and possession.  Exceptions to these strict rules which are well recognised  are gifts by the wife to the husband and by  the father to his minor child (Macnaghten page 51 principles 8 & 9).  Later it was held that where the donor and donee reside together  an  overt  act only is  necessary  and  this  rule applies  between  husband and wife.  In Mohammad  Sadiq  Ali Khan  v. Fakhr Jahan(1), it was held that even  mutation  of names is not necessary if the deed declares that  possession is delivered and the deed is handed to the wife.  A  similar extension took place in cases of gifts by a guardian to  his minor  ward (Wilson Digest of Anglo-Muhammadan Law 6th  Edn. p. 328).  In the case of a gift to an orphan minor the ,rule was relaxed in this way:               "If a fatherless child be under charge of  his               mother,               (1)  (1932) 59 I.A. I.               556               and she take possession of a gift made to him,               it  is valid........ The same rule also  holds               with  respect to a stranger who has charge  of               the orphan." Hedaya p. 484.  See also  Baillie               p. 539 (Lahore Edn.)               In  the  case of the absence of  the  guardian               (Gheebuti-Moonqutaa)  the  commentators  agree

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             that  in a gift by the mother  her  possession               after  gift does not render it invalid.   Thus               also brother and paternal uncle in the absence               of  the  father are included in  the  list  of               persons who can take possession on behalf of a               minor  who is in their charge: Durrul  Mukhtar               Vol. 4 p. 512 (Cairo Edn.). In Radd-ul-Mukhtar               it is said :               "It is laid down in the Barjindi : There is  a               difference  of opinion, where  possession  has               been  taken by one, who has it (the child)  in               his charge when the father is present. It is               said, it is not valid; and the correct opinionis               that it is valid." (Vol. 4, C.513 Cairo Edn.)               In  the  Bahr-al-Raiq  Vol.  7  p.  314  (Edn.               Cairo)               "The  rule  is not restricted  to  mother  and               stranger   but  means  that   every   relation               excepting  the  father, the  grand-father  and               their executors is like the mother.               The  gift  becomes complete  by  their  taking               possession  if the infant is in  their  charge               otherwise not."               In  Fatawai Kazikhan Vol. 4, p.  289  (Lucknow               Edn.), the passage quoted above from  Radd-ul-               Mukhtar is to be found and the same passage is               also to be found in Fatawai Alamgiri Vol. 4 p.               548 Cairo Edn.  All these passages can be seen               in  the lectures on Moslem Legal  Institutions               by Dr. Abdullah al-Mamun Suhrawardy.  The rule               about   possession  is  relaxed   in   certain               circumstances  of which the following  passage               from the Hedaya p. 484 mentions some :               "It is lawful for a husband to take possession               of  any  thing  given to his  wife,  being  an               infant,  provided she has been sent  from  her               father’s  house to his; and this although  the               father  be  present, because he  is  held,  by               implication,  to have resigned the  management               of  her  concerns  to  the  husband.   It   is               otherwise where she has not been sent from her               father’s house, because then the father is not               held  to have resigned the management  of  her               concerns.  It is also otherwise                                    557                with-respect  to  ’a mother’  or  any  others               having  charge  of her; because they  are  not               entitled  to possess themselves of- a gift  in               her  behalf,  unless the father  be  dead,  or               absent,  and his place of residence unknown  ;               for their power is in virtue of necessity, and               not  from  any supposed authority ;  and  this               necessity  cannot exist whilst the  father  is               present." Macnaghten quotes the same rule at p. 225 and at page 230 is given  a list of other writers who have subscribed to  these liberal views. The  above views have also been incorporated in  their  text books by the modern writers on Muhammadan Law. (See  Mulla’s Principles of Mahomedan Law 14th Edn. pp. 139, 142, 144  and 146, Tyabji’s Muhammadan Law 3rd Edn. pp. 430-435, ss.  397- 400, Amir Ali’s Mahommedan Law Vol. 1, pp. 130-131). The  principles have further been applied in some  decisions of  the  High Courts in India.  In Nabi Sab  v.  Papiah  and ors.(1)  it  was  held that gift did  not  necessarily  fail

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merely because possession was not handed over to the minor’s father or guardian and the donor could nominate a person  to accept the gift on behalf of the minor.  It was pointed  out that  the Muhammadan law if gifts, though strict, could  not be  taken  to  be made up of  unmeaning  technicalities.   A similar view was expressed in Nauab Ian v. Safiur Rehman(2). These cases were followed recently in Munni Bai and anr.  v. Abdul  Gani(3),  where  it was held  that  when  a  document embodying  the intention of the donor was delivered  to  the minor possessing discretion and accepted by her it  amounted to acceptance of gift.  It was further pointed out that  all that was needed was that the donor must evince an  immediate and bona fide intention to make the gift and to complete  it by  some significant overt act.  See also Mt.  Fatma v.  Mt. Autun(4), Mst.  Azizi and anr. v. Sona Mir(5) and Mam&  ors. v.  Kunhdi & ors.(6). (1)  A.I.R. (1915) Mad. 972. (2)  A.I.R. (1918) Cal. 786. (3)  A.I.R. (1959) M.P. 225. (4)  A.I.R. (1944) Sind 195, (5)  A.I.R. (1962) J. & K. 4. (6)  1962 K.L.J 351. 558 In Md.  Abdul Ghani v. Mt.  Fakhr Jahan (1), it was held  by the Judicial Committee as follows:               "In considering what is the Mohammaden Law  on               the subject of gift intervivos their Lordships               have  to  bear in mind that when the  old  and               admittedly  authoritative texts of  Mohammedan               law  were  promulgated there were not  in  the                             contemplation  of  any  one  any  Tran sfer   of               Property  Acts,  any  Registration  Acts,  any               Revenue  Courts  to record  transfers  of  the               possession  of land, or any zamindari  estates               large  or  small, and that it could  not  have               been  intended to lay down for all  time  what               should  alone be the evidence that  titles  to               lands   had   passed.   The  object   of   the               Mohammedan  law as to gifts apparently was  to               prevent  disputes as to whether the donor  and               the donee intended at the time that the  title               to the property should pass from the donor  to               the  donee  and that the handing over  by  the               donor  and the acceptance by the donee of  the               property  should  be good  evidence  that  the               property had been given by the donor and  had-               been accepted by the donee as a gift."   Later  in Mahamad Sadiq Ali Khan v. Fakhr Jahan  Begum(2), it  was  held  by the Privy Council that  at  least  between husband  and wife Muhammadan law did not require  an  actual vacation  by the husband and an actual taking possession  by the  wife.   In the opinion of the  Judicial  Committee  the declaration made by the husband followed by the handing over of  the  deed was sufficient to establish  the  transfer  of possession. These  cases  show that the strict rule  of  Muhammadan  law about  giving possession to one of the stated  guardians  of the property of the minor is not a condition of its validity in  certain cases. One such case is gift by the  husband  to his  wife, and another, where there is gift to a  minor  who has no guardian of the property in existence.  In such cases the gift through the mother is a valid gift. The  respondent relied  upon  two  cases reported in Suna Mia v.  S.  A.  S. Pillai(3)  where  gift  to a minor through  the  mother  was

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considered invalid and Musa Miya and (1) (1922) 491.A. 195 at 209. (2) (1932) 591.A.I. (3) (1932) 11 Rang. 109.                             559 anr.  v. Kadar Bux(1), where a gift by a grandfather to  his minor grandsons when the father was alive, without  delivery of  possession to the father, was held to be invalid.   Both these cases involve gifts in favour of minors whose  fathers were  alive  and competent.  They arc  distinguishable  from those cases in which there is no guardian of the property to accept  the gift and the minor is within the care either  of the mother or of other near relative or even a stranger.  In such  cases the benefit to the minor and the  completion  of the  gift for his benefit is the sole consideration.  As  we have   shown  above  there  is  good  authority  for   these propositions  in the ancient and modern books of  Muhammadan law and in decided cases of undoubted authority. In  our  judgment the gift in the present case was  a  valid gift.   Mammotty was living at the time of the gift  in  the house  of  his mother-in-law and was probably  a  very  sick person  though  not in marzulmaut.  His minor wife  who  had attained  discretion  was capable under  Muhammadan  law  to accept the gift, was living at her mother’s house and in her care where the husband was also residing.  The intention  to make the gift was clear and manifest because it was made  by a  deed which was registered and handed over by Mammotty  to his  mother-in-law  and  accepted by her on  behalf  of  the minor.   There can be no question that there was a  complete intention to divest ownership on the part of Mammotty and to transfer the property to the donee.  If Mammotty had  handed over the deed to his wife, the gift would have been complete under Muhammadan law and it seems impossible to hold that by handing over the deed to his mother-in law, in whose  charge his wife was during his illness and afterwards Mammotty  did not  complete  the gift.  In our opinion both on  texts  and authorities  such  a  gift must be  accepted  as  valid  and complete.   The appeal therefore succeeds.  The Judgment  of the High Court and of the Courts below are set aside and the suit of the Plaintiff is ordered to be dismissed with  costs throughout. Appeal allowed. (1) I.L.R. 52 Bom. 316 P.C. 560