(1) In both these second appeals a common question of law arises and that question is whether a gift by a grandfather to his minor grandsons of immovable property can be said to be complete where the delivery of possession is accepted on behalf of the minors not by their father but by their mother.
(2) It has been held by the lower Appelate Court that in such circumstances the gift cannot be regarded as complete. It seems to me that the viw taken by the lower appellate Court is supported by the decisions in Musa Miya v. KadarBuz. ILR 52 Bom 316 and in Suma Meah v. S.A.S. Pillai AIR 1933 Rang be held that there was no necessity of transfer of possession to the father of the donees who was their natural and therefore their legal guardian.155.The first mentioned decisioon is of the Privy Council.in that case, as in the present case, the father of the moiinors was alive and was actually living with his wife and children in the house of a donor, who was the paternal grandfather of the donees. It was held that the father was in a position to excersise his rights and powers as parent and guardian and to take possession according to Mahomedan law and the donor continued to be in possession and management of the property,though on behalf of the donees,till his death. It was contended that,by these circumstances, it should be held that there was no necessity of transfer of possession to the father of the donees who was their natural and therefore theri legal guardian. Their Lordships negatived the contention. Relaince was placed before their Lorships upon the following rule:
If a father make a gift of something to his infant son, the infant by vitue of the gift becomes propritor of the same provided etc. The same rule holds when a mother gives something to her infant son whom she maintains and of whom the father is dead and no guardian provided, and so also with respect to the gift of any other person maintaining a child under these circumstances.
Their Lordhsips expressed the opinion that this precedent did not support the case of the donees but on the contrary seemed to be against thier contention. Then thier Lordships observed that the rule applied to the case of a mother maing a gift to her infant son wmom she maintains only when the father is dead and no guardian has been provided. It was also held that the rule applied to the gift by any other person maintaing a child ' under these circumstances' i.e. when the father is deand and no guardian has been provided. theri Lordships then observed that this seemed to imply that when the father, who is the natural guardian of this infant hildren, is alive and has not been deprived of his rights and powers of guardian, the above mentioned rule will not apply. From What their Lorships have said, it is absolutely clear that the exception under Mahomdan law rthat there is no need for transfer of possession or delivery of possession to the donee when te gift is made by the natural guardian of the minor cannot be extended to the case of a gift by the grandfather.
(3) The question is as to who can take delivery of posssesion on behalf of the minor. In the instant case, the evidence is to the effect that the mother of the minors accepted delivery on their behalf. Now the mother had no right to the custody of minor's property as long as their father was alive. She was not even the defacto guardian.For ths reason, she could not accept delivery of possession on thier behalf. This is what was held in the rangoon case referred to above. It was contended by Mr.Karlekar for the donees,who are the apellants before me, that it is not necessary that a gift must be accepted on behalf of a minor donees by their legal guardian and that it would be open to any person to accept a gift on their bnehalf. He point out that after all, in accepting delivery of possession of property gifted to a minor, the person who so accepts it does something for the benefit of the minor,and that therefore that person must be held to be competant in law to accept such gift.. I am afraid I cannot accept this argument because the law contemplates that delivery of possessson is essential for completion of a valid gft; and delivery of possession must ordinarily be made whne the property is capable of actual delivery of possession, to the person who is to take possession of such property or a person duly authorised in law to take delivery of possession on his behalf. In the case of a minor, the only person who can be said to be legally authorised to take possession or accept delivery of possession on behalf of the minor is his legal guardian. A stranger cannot step in and take possession on his behalf. No doubt,in accepting delivery of possession of property gifted to a minor,the person taking possession will be accepting a benefit,but it seems to me that a benefit cannot be forced upon a minor in this way. It can be accepted only by someone who is competeant to act on behalf of the minor.
(4) One of the properties gifted is a house in which the grandfather,who is the donor,the donees and their father and mother live. Relying upon the decision of West.J. in Shaik Ibraham .v. Shaik Suleiman ILR 9 Bom 146, Mr.Karlekar contended that in a case of this kind no actual delivery of possession by the donor to the donees was necessary. In the decision jut referred to, West J., has observed at pages 150-1 as follows:
'......... As to the delivery of the house,the principle is to be borne in mind,that when a person is present on the premesis proposed to be delivered to himm, a declaration of the person previously possessed puts him in to possession. He occupies certain part, and this occupatio becoming actual possesion by,the will of the parties, extends to the whole hich is in immediate connection with such part where the possession is rightfully, though not where it is wrongfully taken - Ex parte Fletcher (1877) 5 Ch. D 809. An appropriate inttention where two are present in the same premises may put the one out as well as the other into possession without any actual physical departure, or formal entry, and effect is to be given, as far as possible, to the purpose of an owner, whose intention o transfer has been unequivovally manifested.'.
It is not necessary for me to consider how far this statement of the law can eb regarded as correct in view of the decision of their lordships of the Privy Council in ILR 52 Bom 316: AIR 1928 PC 108 because the decision of West.J. is distinguishable.In the case before him, the donee does not appear to have been a minor and was thus a person who could legally form an intention to continue in possession of the property as an owner. Where the donee is minor an intention of the kind contemplated by West.J. could only be formed on his behalf by his legal guardian.
(5) then Mr.Karlekar pointed out that the suit property was actually mutated in the name of the minor and therefore it must be held that the possession of that property was delivered to him. It may be mentioned that even the record of rights does not show that the the minors were in possession through their legal guardian. On the contrary, it shows tht they were in possession through their mother. Therefore even if it is held that possession had been delivered by the donoor,it was so delivered not to the leagal guardian, but to the mother of the minotrs who could not in law be entitled to act for and on behalf of the minors and accept deliver of possession.
(6) That being the position, I hold that the Courts below were right in coming to the conclusion that the deed of the gift was not complete and therefore not valid in law. Accordingly, I dismiss the appeqls with costs.
(7) Appeals dismissed.