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Mahammadan Law–Gift–Validity of gift by husband to his minor wife accepted on her behalf by her mother. =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. 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.

Deed of donation of the monastery “Fulda” from...

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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.
 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
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
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
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
 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
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
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

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