Case: Valia Peedikakkandi Katheessa Umma &amp; Others Vs. Pathakkalan Naravanath Kumhamu &amp; Others

(See Mullas Principles of Mahomedan Law 14th Edn., pp. 139, 142, 144 and 146. Tyabjis Muhammadan Law 3rd Edn., pp. 430-435, Ss. 397-400, Amir Alis Mahommedon Law Vol. 1, pp. 130-131).13. The principles have further been applied in some decisions of the High Courts in India, In Nabi Sab v. M. Papiah, AIR 1915 Mad 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 Nawabjan v. Safiur Rahman, AIR 1918 Cal 786. These cases were followed recently in Munni Bai v. Abdul Gani. AIR 1959 Madh Pra 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 195, Mst. Azizi v. Sona Mir, AIR 1962 J and K 4 and Mammad v. Kunhali, 1962 Ker L J 351.14. In Md. Abdul Ghani Khan v. Mt. Fakhr Jahan Begam, 49 Ind App 195 at p. 209 : (AIR 1922 P C. 281 at p. 288), it was held by the Judicial Committee as follows:"In considering what is the Mohammedan law on the subject of gift inter vivos, their Lordships have to bear in mind that when he old and admittedly authoritative texts of Mohammedan 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 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 59 Ind App 1 : (AIR 1932 P C 13) 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 vacation by the husband and actual taking possession by the wife. In the opinion of the Judicial Committee the declaration made by the husband followed 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 Meah v. S. A. S. Pillai, ILR II Rang 109 : (AIR 1933 Rang 155) where a gift to a minor through the mother was considered invalid, and Musa Miya v. Kadar Bax, ILR 52 Bom 316 : (AIR 1928 P C 108) where 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 on 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-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 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 -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 Mammmotty 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]The parties are Hanafis. No direct instance from the authoritative books on Hanafi law can be cited but there is not text prohibiting the giving of possession to the mother. On the other hand there are other instances from which a deduction by analogy (Raifi l ciyas) can be made. The Hanafi laws as given in the Kafaya recognize 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.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 validwe have shown above there is good authority for these propositions in the ancient and modern books on 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-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 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 -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 Mammmotty did not complete the gift. In our opinion both on texts and authorities such a gift must be accepted as valid and complete.