Case: Katheesa Umma &amp; Others Vs. Kunhamu &amp; Others

incorporated in their text books by the modern writers on Muhammadan Law. (See Mullas Principles of Muhammadan Law, 14th Edn., pp. 139, 142, 144 and 146, Tyabjis Muhammadan Law, 3rd Edn., pp. 430-435, ss, 397-400, Amir Alis Muhammadan Law, Vol. I, pp. 130-131). 13. The principles have further been applied in some decisions of the High Courts in India. In Nabi Sab v. Papiah (AIR 1915 Mad. p. 972) it was held that gift did not necessarily fail merely because possession was not handed over to the minors 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 of gifts, though strict could not be taken to be made up of unmeaning technicalities. A similar view was expressed in Nawab Jan v Safiur Rahman (AIR 1918 Cal. p. 786). These cases were followed recently in Munni Bai and Another v Abdul Gani (AIR 1959 MP p. 225) 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 Mst. Fatma v Mst. Autun (AIR 1944 Sind p. 195), Mst. Aiizi and Another Sona Mir (AIR 1962 J & K p. 4) and Mammad and Others v Kunhali and Others (1962 KLJ 351 ). 14. In Md. Abdul Gyani v Mt. Faker Jahan (1922 (49) IA p. 195 at p. 209) it was held by the Judicial Committee as follows:"In considering what is the Muhammadan Law on the subject of gift, intervivos their Lordships have to bear in mind that when the old and admittedly authoritative texts of Muhammadan Law were promulgated there were not in the contemplation of any one, any Transfer 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 Muhammadan 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 Mohamad Sadiq Ali Khan v Fakhr Jahan Begum (1932 (59) IA 1) 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. 15. These cases show that the strict rule of Muhammadan Law about giving possession to one of the stated guardians 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 Respondents relied upon two cases reported in Suna Mia v S. A. S. Pillai (1932 (11) Rang., p. 109) where gift to a minor through the mother was considered invalid. And Musa miye and Another v Kadar Bux (ILR 52 Bom. 316, P. C.) where a gift by a grand father 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 are 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. 16. 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 inlaw 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 mothers 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 inlaw 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 Muhatnmadan Law and it seems impossible to hold that by handing over the deed to his mother inlaw, 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]7. 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:, Vol. III, p. 104 andi Vol. V, pp., original text quoted at p. 445 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. 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 unmarried 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 Seinaba8. Seinabas mother was also not a guardian of the property of Seinaba. Muhammadan Law makes a distinction between guardian of the person, guardian of the property and guardian for the purpose of marriage) 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 Kazis executor. None of these were in existence except perhaps the Civil Court which has taken the place of the KaziThe 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 (Raifi 7 ciyas) can be made. The Hanafi laws 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 importance to decisions based on istehsan (liberal construction; lit. producing symmetry) and istislah (public policy). The Prophet himself approved of Muizz (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.15. These cases show that the strict rule of Muhammadan Law about giving possession to one of the stated guardians 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 giftBoth these cases involve gifts in favour of minors whose fathers were alive and competent. They are 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 authority16. 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 inlaw 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 mothers 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 inlaw 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 Muhatnmadan Law and it seems impossible to hold that by handing over the deed to his mother inlaw, 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.