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 ST Desai and VA Seyid Muhmmad for the appellants
Sardar Bahadur for the respondents
August 23 1963
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 616 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 316 share each
He also submitted that the first three defendants the appellants were entitled to the remaining 416 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 14 as there was no issue and the remaining 34 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 ST 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
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 SC India64 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
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 SC India64 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 vs Fakhr Jahan1 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 IA 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 C513 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
139 142 144 and 146 Tyabji s Muhammadan Law 3rd Edn
430 435 sections 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 vs Papiah and ors1 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 vs Safiur Rehman2
These cases were followed recently in Munni Bai and anr
vs Abdul Gani3 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 vs Mt Autun4 Mst
Azizi and anr
vs Sona Mir5 and Mam ors
vs Kunhdi  ors6
1 AIR 1915 Mad
2 AIR 1918 Cal
3 AIR 1959 MP 225
4 AIR 1944 Sind 195 5 AIR 1962 J  K 4
6 1962 KLJ 351 558 In Md Abdul Ghani vs 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 vs Fakhr Jahan Begum2 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 vs section A section Pillai3 where gift to a minor through the mother was considered invalid and Musa Miya and 1 1922 491A 195 at 209
2 1932 591AI 3 1932 11 Rang 109
559 anr
vs Kadar Bux1 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


Summary:
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 616 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 ie 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 vs Fakir Khan 1932 LR59 IA 1 Nabi Sab vs Papiah and Ors
AIR 1915 Mad
972 Nawab fan vs Safiur Rahman AIR 1918 Cal 786 Munni Bai vs Abdul Gani AIR 1959 MP 225 Mt Fatma vs Mt Autun AIR 1944 Sind
195 Mst
Azizi vs Sona Mir AIR 1962 J  K 4 Mareroad  Ors
vs Kunhali  Ors 1962 KLJ 351 Md Abdul Ghani vs Mt Fakir Khan 1962 49 IA 195 Suna Mia vs SAS Pillai 1932 11 Rang
109 and Musa Miya vs Kadar Bux ILR  referred to