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

The facts leading up to this question may now be stated.3. 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-laws house afterwards. There are conflicting versions about the nature of the disease and a plea was taken in the as that the gift was made in contemplation of death and was voidable. This plea need not detain us because the trail Judge and the first Appellate Judge did not accept it.4. After the death of Seinaba, the present suit was brought by Kunhamu an elder 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 in valid. To this 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, Kunhamus 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 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 her 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 and 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 half 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.

Reasoning:
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.