1. Kallu bad a brother-in-law Rahim Bukhsh, who had a daughter, Mt. Fatima, Mt. Fatima's parents died while she was an infant and she was brought up wholly by her uncle Kallu. Kallu owned a shop, and of this shop he made a gift to Mt. Fatima, the minor, who was living with him. Mt. Fatima, Kallu's niece, married Kallu's son, Mohammad Ismail. After her death the question of the validity of this gift has been disputed. Mt. Fatima's brother Muhammad Yusuf (plaintiff) has sued Mohammad Ismail, his brother-in-law, for a declaration of his right to half the shop which was the subject of the gift, as heir of Mt. Fatima. Mohammad Ismail contended that the deed of gift was invalid and that he was entitled to the whole shop as a son of Kallu. The deed of gift is said to have been invalid, because it was not accompanied by any delivery of possession by Kallu to the 'legal' guardians of Mt. Fatima. There is nothing showing that there are any female relatives of Mt. Fatima alive, and it is admitted on both sides that, the legal guardians of her property and also, as it happens in the absence of female relatives, of her person, are her paternal uncles. Kallu was only a maternal uncle of Fatima. The lower appellate Court held that, as there were paternal uncles of Mt. Fatima alive,
the formal transfer was necessary; that this formality was not observed; and that the failure to observe the formality invalidates the gift.
2. It, therefore, dismissed the plaintiff's suit.
3. The plaintiff has appealed, and relies on the proposition that whereas the donor was the de facto guardian of the minor's person with the consent or, at any rate, without any opposition from the legal guardians, the paternal uncles, no delivery of possession was necessary to make the gift valid. We are of opinion that he has established this plea. It is unnecessary to refer more than briefly to the authorities which, in effect, have not been challenged. The facts as we have stated them, are very simple. Guardians who had right to be described as the legal guardians under the Muhammadan Law permitted the minor girl to be brought up in the family of, and as far as the findings of fact go, under the sole control of, her maternal uncle, Kallu, the man who made the gift in dispute. For the plaintiff's, reliance is placed on a passage in Wilson's Muhammadan Law, 5th Edition, page 323, para. 303. It is there laid down that,
no transfer is necessary in the case of a gift by a father to his infant son...and the law is the same in every other case where a donee is a minor in lawful custody of the donor.
4. Similar passages have been quoted for the plaintiff, from Sarcar, Tyabji and Ameer Ali. We think that there is nothing to limit the words 'lawful custody' to meaning the custody of only such persons, as among those who are alive come first in the line of succession of those entitled to claim, guardianship. The whole Spirit underlying the authorities is clearly that full effect may be given to the fact that a person is in actual custody of the minor with the express consent of the legal guardian or at any rate, with a consent to be implied from the absence of any opposition.
5. We hold, therefore, that in the present case no delivery of possession was necessary to validate the gift. In that view the plaintiff was entitled to succeed, and allowing the appeal we set aside the decree of the lower appellate Court and restore that of the Court of first instance. The plaintiff-appellant will have his costs in this Court and in the lower appellate Court.