IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 29TH JUNE 2010 / 8TH ASHADHA 1932 RSA.No. 474 of 2007() --------------------- AS.3/2006 of ADDL.SUB COURT, ALAPPUZHA OS.730/2002 of ADDL.MUNSIFF COURT, ALAPPUZHA .................... APPELLANT/APPELLANT/PLAINTIFF: ------------------------------------------------------- SALEKATH BEEVI, W/O. LATE ABDUL KHADER, KATTUPURAM VELIYIL, VANDANAM MURI, PUNNAPRA VILLAGE, ALAPPUZHA. BY ADV. SRI.S.SANAL KUMAR RESPONDENT(S): RESPONDENT/PLAINTIFF: -------------------------------------------------------------------- MUMTHAS BEEVI, D/O. AISHA BEEVI, RESIDING AT KATTUPURAM VELIYIL, VANDANAM MURI, PUNNAPRA VILLAGE, ALAPPUZHA. BY ADVS. SRI.K.S.HARIHARAPUTHRAN, SRI.GEORGE MATHEW. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01/06/2010, THE COURT ON 29/06/2010 DELIVERED THE FOLLOWING: Kss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - R.S.A. No. 474 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of June, 2010. JUDGMENT The question as to whether acceptance of a gift by a minor is valid in Muslim Law arises for consideration in this appeal. The defendant, who suffered a decree at the hands of both the courts below is the appellant. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The case as unfolded from the records is that when the mother of the plaintiff became pregnant, she took shelter with the defendant, who was gracious enough to give her accommodation. The plaintiff was born. Plaintiff's mother continued her residence and they lived like members of a family. As far as the defendant is concerned, the plaintiff was like her own daughter and she showered all her love on her. The defendant took care of all her affairs since the mother of the plaintiff had to go abroad on employment. Out of the immense RSA.474/2007. 2 affection and love for the plaintiff, the defendant executed Ext.A1 gift deed dated 2.11.1987, whereby she gifted the 10 cents obtained by her under kudikidappu to the plaintiff. However, the defendant was clever enough to retain life interest and right of residence in the house. Everything was going well till the marriage of the plaintiff. On 18.5.2002 the defendant executed Ext.B1 cancellation deed cancelling Ext.A1 gift deed in favour of the plaintiff. Though no reason as such is given in the cancellation deed, it appears that after the marriage the attitude of the plaintiff towards the defendant was quite unsatisfactory and far from pleasant. Coming to know about the cancellation deed, the plaintiff laid the suit for a declaration and injunction. 3. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.W.1 and the documents marked as Exts. A1 and A2 by the plaintiff. The defendant examined herself as D.W.1 and had Exts. B1 to B6 marked. On a consideration of the materials before it, the trial court came to the conclusion that the gift RSA.474/2007. 3 had been accepted as is envisaged under the Muslim Personal Law and therefore it could not be cancelled. A decree declaring the right of the plaintiff subject to the life interest of the defendant was passed. The defendant carried the matter in appeal as A.S. 3 of 2006 before the Sub Court, Alappuzha. The lower appellate court on a consideration of the materials before it concurred with the trial court and dismissed the appeal. Hence this Second Appeal. 4. The question of law that arises for consideration reads as follows: “When plaintiff was aged 12 years at the time of execution of Ext.A1 gift deed by the defendant and plaintiff has no case that the gift was accepted by her legal guardian, whether finding of courts below that Ext.A1 gift deed was accepted by the plaintiff and plaintiff has title to the plaint schedule property is sustainable.” 5. As already noticed, the facts fall within a narrow compass. Learned counsel appearing for the appellant confined his argument to the sole question RSA.474/2007. 4 whether there is a proper acceptance of the gift in favour of the plaintiff. According to the learned counsel, on going through the evidence of P.W.1, it can be seen that the acceptance was by her. She was only aged 12 at time of the gift deed and if so, the minor could not have accepted the gift. Then the gift itself is invalid and has not taken effect and therefore the courts below were not justified in passing a decree against the defendant. 6. Learned counsel appearing for the respondent pointed out that there is nothing which prevented a minor from accepting the gift deed in Mohammedan law. Probably one could say that possession could not be taken by the minor and that may have to be done by a guardian recognized by Muslim personal law. Learned counsel drew the attention of this court to the fact that there is no dispute regarding the fact that possession has infact been taken in accordance with law and the only point raised is that minor cannot accept a gift. RSA.474/2007. 5 7. In support of his contention, learned counsel for the appellant relied on the decision reported in Katheesa Umma v. Narayanath Kunhambu (AIR 1964 SC 275) and Laila Beevi v. N. Sumina (2009(3) KHC 661) and contended for the position that the minor cannot accept a gift in his or her favour. 8. Learned counsel appearing for the respondent on the other hand contended that the assertions made by the counsel for the appellant that the minor cannot accept a gift is not correct in law. There is nothing which prevents the minor from accepting a gift. There is considerable difference from saying that a minor cannot accept a gift and that minor cannot take possession of the property. These are two distinct features. Probably as far as the taking of delivery or possession of the property is concerned, it could be said that it has to be done through a guardian. But it is fallacious to say that a gift cannot be accepted by a minor. It was also pointed out that for a long time it was held that natural guardian or court appointed guardian could take RSA.474/2007. 6 delivery of the property on behalf of the minor. But later on law developed and it came to the stage where any person who is in charge of the minor can take possession of the property on behalf of the minor. In the absence of the father, now it is well settled that, the mother can take possession of the property. In support of his contention that minor can accept the gift, learned counsel relied on the following decisions: i) Munni Bai v. Abdul Gani (AIR 1959 MP 225) ii) Mt. Fatma v. Mt. Autun (AIR 1944 Sind 195) iii) S.M. Usman Ali v. Kubendra Bai (AIR 1973 Madras 280) iv) Nani Amma Janaki Amma v. Kesava Kurup Gopala Kurup 1(969 K.L.R. 355) v) Assankutty v. Mohammed Kurikkal (1961 KLT 959) vi) K. Balakrishnan v. K. Kamalam (2004) 1 SCC 581) 9. It will be first useful to refer to the gift deed as such in question. Ext.A1 is the gift deed. In Ext.A1 it is stated as follows: RSA.474/2007. 7 10. The nomenclature itself it is a gift deed. The reason for gifting the property is discernible from the above recital. It is also clear that the defendant had given up RSA.474/2007. 8 her rights over the property and given possession of the property and the entire bundle of rights over the property to the plaintiff as per Ext.A1 subject to the reservation of life interest and right of residence in her favour. 11. Ext.B1 is the cancellation deed. The relevant recital reads as follows: 12. The legal consequence of these two documents will be discussed a little later. However, it should be noticed that even after the gift deed, namely, Ext.A1, the parties continued to reside together and still they do so. It needs to be remembered that the mother of the plaintiff is employed abroad and plaintiff is married now. RSA.474/2007. 9 It also needs to be noticed that the cancellation deed was executed 15 years after Ext.A1 was executed. 13. A gift in Muslim law was the subject matter of considerable debate. In Transfer of Property Act Sections 122 to 129 deals with various aspects of gifts. However, Section 129 reads as follows: “129. Saving of donations mortis causa and Muhammadan Law.- Nothing in this Chapter relates to gifts of moveable property made in contemplation of death, or shall be deemed to affect any rule of Muhammadan law.” It can therefore be seen that the provisions of the Transfer of Property Act are not applicable in the case of a gift in Muslim Law. In Muslim Law there can be an oral gift also. There are five types of gifts as per Muslim personal law, they are: (i) Hiba (ii) Ariat (iii) Sadaqa (iv) Hiba-bil.iwaz (v) Hiba-ba-sharat-ul-iwaz. RSA.474/2007. 10 As far as the Muslim gift is concerned, conditions necessary for a valid disposition is; (i) majority (ii) understanding (iii) freedom (iv) ownership of subject matter of disposition. 14. In the case on hand, the gift falls under the Hiba category. It is said that Hiba is a bilateral transaction, which takes effect when the donor declares the Hiba and the donee signifies his or her acceptance of the same. The ingredients to constitute Hiba are as follows: (i) disposition must be gratuitous. (ii) it must effect mere transfer of the corpus of a property by one person to another. (iii) Transfer should be unconditional. (iv) The property transferred must be in existence and should be specified. The three essential conditions to constitute the gift are (i) declaration of gift by the donor (Igde) RSA.474/2007. 11 (ii) acceptance of the gift, express or implied, by or on behalf of the donee (Quabul) (iii) delivery of the subject matter of the gift by the donor to the donee (Quada). 15. As already noticed, the gift could be oral or in writing. A man may lawfully make a gift of his property to another during his life time or he may give it away to someone after his death by will. The first is called disposition inter vivos and the latter testamentary disposition. Hiba is an immediate and unconditional transfer of the corpus of the property without any return. Every Muslim, who has attained majority and has a sound mind can make a gift. The gift is complete not on the declaration of the date of acceptance, but on the date on which possession is delivered. It is also essential that for validity of a gift the donor should divest himself completely of all ownership and domain over the subject of gift. What is essential is that there should be a gift of the corpus. If the donor reserves to himself the right to be in possession of RSA.474/2007. 12 the corpus and the right to enjoy the same, there cannot be a valid gift as per the Muslim Law. But reservation of life interest and right of residence stand on a different footing. 16. In the decision reported in Ibrahim Kunju v. Pakkeer Muhammed Kunju (1984 KLJ 890) it was held as follows: “While it is true that according to principles of Mohammedan Law, a gift of immovable properties of which the donor is in actual possession is not complete unless the donee is given possession, the mere fact that the donor reserves the right to take usufruct during his lifetime does not mean that possession is not given to the donees. Such a reservation is quite consistent with delivery of possession of the properties to the donees. A condition in a deed of gift that the whole of the usufruct would be taken by the donor during his lifetime would not make the gift invalid if possession of the subject matter of the gift was given to the donees.” In the decision reported in Maitheen Beevi Umma v. Varkey (1956 KLT 444) it was held as follows: RSA.474/2007. 13 “Though in the case of a gift of the corpus, no conditions can be imposed, rights in respect of the usufruct may be granted for a limited period or for the life time of a granteee. If it is found on construction of a deed of gift that it is a transfer only of limited interest in the usufruct, the ownership of the corpus will not be affected and would be valid as arial. A condition that the whole of the usufruct would be in the donor's use for his life time and thereafter to his wife for her life time is perfectly valid.” 17. According to learned counsel for the appellant, going by the evidence of P.W.1 it is very clear that the gift was accepted only by her. There is no dispute that at the relevant time she was a minor. Learned counsel would say that therefore the acceptance is invalid and cannot be recognized in law. Considerable reliance is placed on the decision reported in Katheessa Umma v. Narayanath Kunhambu (AIR 1964 SC 275). Learned counsel relied on the following passage in the said decision in support of his contention: RSA.474/2007. 14 “Where a husband, a Hanafi, makes a gift of properties, including immovable property, by a registered deed, to his minor wife who had attained puberty and discretion, and the gift is accepted on her behalf by her mother in whose house the husband and wife were residing, when the minor's father and father's father are not alive and there is no executor of the one or the other, such a gift must be accepted as valid and complete although the deed is handed over to the minor's mother and possession of the property is not given to a guardian specially appointed for the purpose by the civil Court. There can be no question that there was a complete intention to divest ownership, on the part of the husband of the donor, and to transfer the property to the donee. If the husband had handed over the deed to his wife, the gift would have been complete under Muhammadan law and it is impossible to hold that by handing over the deed to his mother- in-law, in whose charge his wife was, the husband did not complete the gift.” 18. The facts of the decision discloses that one Mammooty was married to one Seinaba. Mammoty made a RSA.474/2007. 15 gift of his property including the immovable property. Mammooty died on 3.5.1946 without an issue. Seinaba also died soon after on 25.2.1947 without leaving an issue. At the time of gift Seinaba was aged only 15 years and nine months. It is seen that Mammotty was ill for a long time and was in hospital and he was discharged uncured. He remained in his mother-in-law's house afterwards. After the death of Seinaba it appears that the elder brother of Mammotty Kunhamu brought a suit for partition. He brought other heirs of Mammotty also as parties to the suit. According to him, the gift in favour of Seinaba was invalid since it was accepted on her behalf by her mother. The courts below held in favour of the plaintiff. However, the apex court ultimately held that even though the mother of Seinaba was not her legal guardian in the strict sense of the term, it was held that on the facts of the case possession of the property after the gift by the mother of the minor concerned is sufficient in law. RSA.474/2007. 16 19. It was following the decision in Katheessa Umma's case that this court had occasion to hold in Laila Beevi v. N. Sumina (2009(3) KCH 661) that acceptance by a guardian of the gift in favour of the minor is essential and the mother can do so on behalf of the minor. 20. On a careful reading of the decision in Katheessa Umma's case it can be seen that it does not actually deal with the acceptance of the gift, ie., certainly regarding the taking of possession of property, which is an essential ingredient for a valid gift. Attention was drawn to paragraph 11 of the decision it reads as follows: “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 or the property unless the minor has reached the years of discretion.” Going by the above extract it cannot be said that a minor cannot accept a gift. One may at once notice that it is one RSA.474/2007. 17 thing to say that the gift has been accepted and another thing to say that possession of the property cannot be taken to as already noticed. In the case of a Muslim gift, acceptance, delivery and taking of possession are essential ingredients of a valid gift. 21. Going by the Muslim personal law the natural guardians are father, grand father, executor appointed by the father or executor appointed by the grand father. Mother was never considered to be the natural guardian except in case of girl child till certain age. Occasions have arisen when possession has been taken by the brother of the minor. In the decision reported in Official Receiver v. Moideen (1969 K.L.R. 508) it was held as follows: “In the circumstances it is not possible to say that acceptance by the brother for and on behalf of the minors was improper and that the gift itself is invalid on account of that. “Where a husband, a Hanafi, makes a gift of properties, including immovable property by a registered deed, to his minor wife who had attained puberty and discretion, and the gift is accepted on her RSA.474/2007. 18 behalf by her mother in whose house the husband and and wife were residing, when the minor's father and father's father are not alive and there is no executor of the one or the other, such a gift must be accepted as valid and complete, although the deed is handed over to the minor's mother and possession of the property is not given to a guardian specially appointed for the purpose of the civil court. There can be no question that there was a complete intention to divest ownership on the part of the husband of the the donor, and to transfer the property to the donee. If the donor husband had handed over the deed to his wife, the gift would have been complete under Mohammadan Law and it is impossible to hold that by handing over the deed to his mother-in-law in whose charge his wife was, the husband did not complete the gift.” So also in the present case the point to be considered is whether the donor had really intended to divest the ownership and to transfer the property to the donees. There is ample evidence in the case to show that the ownership was fully parted with and the direction in the gift deed itself was that the donees should take possession immediately and to pay the revenue, the jenmi purappad etc., to attorn to the jenmi RSA.474/2007. 19 and execute renewals directly with the jenmis, to collect rents directly from the tenants and to evict them, if necessary, to be in possession and enjoyment and to alienate, as they desire. As the donor and the donees were residing together,no formal entry was necessary by the donee to make the gift complete. In such cases it is enough if the donor indicates a clear intention on his part to transfer possession and to divest himself of all control over the subject of the gift, and that is clear from the statements made in the will as indicated above.” In the decision reported in Ahmedkutty v. Ismalu (1981 KLT 9181) it was held that in the case of minors, non- delivery of possession to the guardian is fatal. Instances have occurred when the father gifts his property to his minor son and the question has arisen as to who can take delivery of possession. It has been held that father and son, who are residing together, there need not be an express declaration of taking of possession by the guardian. 22. In the decision reported in Musa Miya v. Kadir Bax (A.I.R. 1928 Privy Council 108), where the the RSA.474/2007. 20 grand father gifted the property to his grand children. However, it was seen that the domain and possession of the property remained with the grand father and he continued to deal with the property as his own and under those circumstances, the gift was held to be invalid. 23. A careful reading of the decision reported in Katheesa Umma's case will show that a minor, who reached the age of discretion can accept the gift. 24. The issue now arises for consideration is whether a minor can accept a gift. One must remember that gift, as far as Muslim law is concerned, is a contract. There is nothing which prevents a minor from taking advantage of the benefits under a contract. Acceptance may be express or implied by conduct and is often considered to be unnecessary in cases where the gift is made by guardian to the ward. In B.R. Verma's Commentaries on Mohammedan Law 9th Edition, in page 529 it was observed as follows: “There is nothing in Mohammedan Law or outside it which prevents a minor from accepting a RSA.474/2007. 21 gift or taking possession of property. When therefore the document executed by the donor embodying declaration of the gift is delivered by the donor to the donee and accepted by him, it would amount to acceptance of the gift on his part.” In Commentaries on Mahommedan Law by Amir Ali, 5th Edition at page 154 it was observed as follows: “If the minor is possessed of understanding, he may take possession of the gift, but in order to prevent any dispute,the Kazi is authorised to appoint a curator for the same. When the donee is insane, the right to take possession belongs to his guardian. If a gift is made to a latik (foundling), the possession of one who brings up the child, or that of the Judge is sufficient. An infant who has attained discretion has a right to reject as well as to accept.” At page 155, it was observed as follows: “A youth who has attained discretion but not puberty, and is able to understand what RSA.474/2007. 22 is to his advantage may accept a gift even after his wali has rejected it.” The principle seems to be that if a person underage, who is able to understand what is to his advantage were, himself to take possession of a gift it would be valid provided it would be of benefit to him. 25. The question was also considered in the decision reported in Mt. Fatma v. Mt. Autun (AIR 1944 Sind 195) wherein it was held as follows: “There is nothing in Mahomedan law or outside it which prevents a minor from accepting a gift or taking possession of property. The principle of Mahomedan law which requires a gift to be completely by a transfer of possession applies equally to moveable and immovable property. No one would contend that a gift of a book or a jewel delivered by the donor to a minor and accepted by the minor was not completed and not valid because it was not taken and accepted by the minor's guardian. There is no reason for holding that the case is different when the property gifted is a piece of land or a house of which a minor has RSA.474/2007. 23