1. This appeal by special leave by defendants Nos. 1 to 3 raises animportant question under the Muhammadan Law, which may be stated thus :
'Is a gift by a husband to his minor wife andaccepted on her behalf by her mother valid ?'
2. It has been held by the High Court and the courts below that inMuhammadan Law such a gift is invalid. The facts leading up to this questionmay now be stated.
3. One Mammotty was married to Seinaba and he made a gift of his propertiesincluding immovable property to Seinaba on April 7, 1944 by a registered deed.Mammotty died on May 3, 1946 without an issue. Seinaba also died soonafterwards on February 25, 1947, without leaving an issue. At this time of thegift Seinaba was 15 years 9 months old. It appears that Mammotty was ill for along time and was in hospital and he was discharged uncurred a month before theexecution of the gift deed and remained in his mother-in-law's houseafterwards. There are conflicting versions about the nature of the disease anda plea was taken in the case that the gift was made in contemplation of deathand was voidable. This plea need not detain us because the trial Judge and thefirst Appellate Judge did not accept it.
4. After the death of Seinaba, the present suit was brought by Kunhamu anelder brother of Mammotty for partition and possession of a 6/16 share of theproperty which he claimed as an heir under the Muhammadan Law, challenging thegift as invalid. To the suit he joined his two sisters as defendants who hesubmitted were entitled to a 3/16 share each. He also submitted that the firstthree defendants (the appellants) were entitled to the remaining 4/16 share asheirs of Seinaba. In other words, Kunhamu's contention was that when successionopened out on the death of Mammotty, his widow Seinaba was entitled to theenhanced share of 1/4 as there was no issue, and the remaining 3/4 wasdivisible between Kunhamu and his two sisters, Kunhamu getting twice as much aseach sister. These shares according to him were unaffected by the invalid giftin favour of Seinaba and accepted on her behalf by her mother. This contentionhas been accepted and it has been held in this case in all the three courtsthat a gift by the husband to his minor wife to be valid must be accepted onher behalf by a legal guardian of her property under the Muhammadan Law, thatis to say, by the father or his executor or by the grand-father or hisexecutor. As Katheesumma the mother of Seinaba was not a legal guardian of theproperty of Seinaba it was contended by the plaintiff that the gift was void.It was admitted on behalf of the plaintiff that Mammotty could have himselftaken over possession of the property as the guardian of his minor wife; but itwas submitted that such was not the gift actually made. These contentionsraises the questions which we have set out earlier in this Judgment.
5. Mr. S. T. Desai on behalf of the appellant contends that neither expressacceptance nor transfer of possession is necessary for the completion of agift, when the donor is himself the guardian or the de-facto guardian or'quasiguardian' provided there is a real and bona fide intention on the donor'spart to transfer the ownership of the subject matter of the gift to the donee,and that even a change in the mode of enjoyment is sufficient evidence of suchan intention. He further contends that no delivery of possession is necessaryin a gift by a husband to his minor wife provided such an intention as abovedescribed is clearly manifested. According to him, the law is satisfied withoutan apparent change of possession and will presume that the subsequent holdingof the property was on behalf of the minor wife. Lastly he submits that in anyview of the matter when a husband makes a gift to minor wife and there is notlegal guardian of property in existence, the gift can be completed by deliveryof the property to and acceptance by any person in whose control the minor isat the time. If there is no such person one can be chosen and appointed by thedonor to whom possession can be made over to manifest the intention ofdeparting from the property gifted. Mr. Desai seeks to justify thesesubmissions on authority as well as by deductions from analogous principles ofMuhammadan Law relating to gifts to minors which are upheld though accepted bypersons others than the four categories of legal guardian. The other sidecontends that there is no rule of Muhammadan Law which permits such acceptanceand that the decision of the High Court is right.
6. A gift (Hiba) is the conferring of a right of property in somethingspecific without an exchange (ewaz). The word Hiba literally means the donationof a thing from which the donee may derive a benefit. The transfer must beimmediate and complete (tamlik-ul'-ain) for the most essential ingredient ofHiba is the declaration 'I have given'. Since Muhammadan Law viewsthe law of gifts as a part of the law of contract there must be a tender (ijab)and an acceptance (qabul) and delivery of possession (qabza). There is,however, no consideration and this fact coupled with the necessary to transferpossession immediately distinguishes gifts from sales.
7. In the present case there is a declaration and a tender by the donorMammotty and as the gift is by a registered deed no question in this behalf canarise. In so far as Mammotty was concerned there was delivery of possession andthe deed also records this fact Possession was not delivered to Seinaba but toher mother, the firs* appellant, and she accepted the gift on behalf ofSeinaba. Mammotty could have made a declaration of gift and taken possession onbehalf of his wife who had attained puberty and had lived with him, for afterthe celebration of marriage a husband can receive a gift in respect of minorwife even though her father be living; (Durrul-Mukhtar, Vol. 3 p. 104 andFatawa-i-Alam-giri Vol. 5 pp. 239-240 original text quoted at p. 455 ofInstitutes of Mussalman Law by Nawab Abdur Rchman). But Mammotty did notcomplete his gift in this way. His gift included immovable properties and itwas accepted by the mother who took over possession on behalf of her minordaughter. A gift to a minor is completed ordinarily by the acceptance of theguardian of the property of the minor Wilayat-td Mal. A mother can exerciseguardianship of the person of a minor daughter (Hiza-nat) till the girl attainspuberty after which the guardianship of the person is that of die father if thegirl is unmarried and that of the husband if she is married and has gone to herhusband. Even under the Guardian and Wards Act, the husband is the guardian othe person after marriage of a girl unless he is considered unfit The motherwas thus not the guardian of the person of Seinaba.
8. Seinaba's mother was also not a guardian of the property of Seinaba.Mahammadan Law makes a distinction between guardian of the person, guardian ofthe property and guardian for the purpose of marriage (Wilayat-ul-Nikah) in thecase of minor females. Guardians of the propriety are father and grandfatherbut they include also executors (Wasi) of these two and even executors of theexecutors and finally the Kazi and the Kazi's executor. None of these were inexistence except perhaps the Civil Court which has taken the place of the Kazi.
9. Now Muhammadan Law of gifts attaches great importance to possession orseisin of the property gifted (Kabz-ul-Kamil) especially of immovable property.The Hedaya says that seisin in the case of gifts is expressly ordained andBaillie (Dig. p. 508) quoting from the Inayah refers to a Hadis of the Prophet- 'a gift is not valid unless possessed'. In the Hedaya it is stated- 'Gifts are rendered valid by tender, acceptance and seisin' (p.482)and in the Vikayah 'gift are perfected by complete seisin'(Macnaghten 202).
10. The question is whether possession can be given to the wife's mother thegift is from the husband to his minor wife and when the minor's father andfather's father are not alive and there is no executor of the one of the other.It is absolutely necessary that possession of the property must be given to aguardian specially to be the appointed by the Civil Court The parties areHanafis. No direct instance from the authoritative books on Hanafi law can becited 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(Rai fi'l qiyas) can be made. The Hanafi law as given in the Kafaya recognisesthe legality of certain gifts which custom ('urf) has accepted. This is becausein deciding questions which are not covered by precedent Hanafi jurisprudenceattaches importance to decisions based on istehsan (liberal construction; lit.producing symmetry) and istislah (public policy). The Prophet himself approvedof Mu'izz (a Governor of a province who was newly appointed) who said that inthe absence of guidance from the Koran and Hadis he would deduce a rule by theexercise of reason. But to be able to say that a new rule exists and has alwaysexisted there should be no rule against it and it must flow naturally fromother established rules and must be based on justice, equity and goodconscience and should not be haram (forbidden) or Makruh (reprobated). It is onthese principles that the Mujtahidis and Muftis have allowed certain gifts tostand even though possession of the property was not handed over to one of thestated guardians of the property of the minor. We shall now refer to some ofthese cases.
11. The rules on the subject may first be recapitulated. It is only actualor constructive possession that completes the gift and registration does notcure the defect nor is a bare declaration in the deed that possession was givento a minor of any avail without that the intervention of the guardian of theproperty unless the minor has reached the years of discretion. If the propertyis with the donor he must depart from it and the donee must enter uponpossession. The strict view was that the donor must not leave behind even astraw belonging to him to show his ownership and possession. Exceptions tothese strict rules which are well recognised are gifts by the wife to thehusband and by the father to his minor child (Macnaghten page 51 principles 8& 9). Later it was held that where the donor and donee reside together anovert act only is necessary and this rule applies between husband and wife. InMohammad Sadiq Ali Khan v. Fakhr Jahan (1932) 59 I.A. I, it was held thateven mutation of names is not necessary if the deed declares that possession isdelivered and the deed is handed to the wife. A similar extension took place incases of gifts by a guardian to his minor ward (Wilson Digest ofAnglo-Muhammadan Law 6th Edn. p. 328). In the case of a gift to an orphan minorthe rule was relaxed in this way :
'If a fatherless child be under charge of hismother, and she take possession of a gift made to him, it is valid ........ Thesame rule also holds with respect to a stranger who has charge of theorphan.' Hedaya p. 484. See also Baillie p. 539 (Lahore Edn.)
l2. In the case of the absence of the guardian (Gheebuti-Moonqutaa) thecommentators agree that in gift by the mother her possession after gift doesnot render it invalid. Thus also brother and paternal uncle in the absence ofthe father are included in the list of persons who can take possession ofbehalf of a minor who is in their charge : Durrul Mukhtar Vol. 4 p. 512 (CairoEdn.). In Radd-ul-Mukhtar it is said :
'It is laid down in the Barjindi : There is adifference of opinion, where possession has been taken by one, who has it (thechild) in his charge when the father is present. It is said, it is not valid;and the correct opinion is that it is valid.' (Vol.4 C. 513 Cairo Edn.)
13. In the Bahr-al-Raiq Vol. 7 p. 314 (Edn. Cairo)
'The rule is not restricted to mother and strangerbut means that every relation excepting the father, the grand-father and theirexecutors is like the mother. The gift becomes complete by their takingpossession if the infant is in their charge otherwise not.'
14. In Fatawai Kazikhan Vol. 4, p. 289 (Lucknow Edn.), the passage quotedabove from Radd-ul-Mukhtar is to be found and the same passage is also to befound in Fatawai Alamgiri Vol. 4 p. 548 Cairo Edn. All these passages can beseen in the lectures on Moslem Legal Institutions by Dr. Abdullah al-MamunSuhrawardy. The rule about possession is relaxed in certain circumstances ofwhich the following passage from the Hedaya p. 484 mentions some :
'It is lawful for a husband to take possession ofany thing given to his wife, being an infant, provided she has been sent fromher father's house to his; and this although the father be present, because heis held, by implication, to have resigned the management of her concerns to thehusband. It is otherwise where she has not been sent from her father's house,because then the father is not held to have resigned the management of herconcerns. It is also otherwise with respect to a mother or any others havingcharge of her; because they are not entitled to possess themselves of a gift inher behalf, unless the father be dead, or absent, and his place of residenceunknown; for their power is in virtue of necessity, and not from any supposedauthority; and this necessity cannot exist whilst the father is present.'
15. Macnaghten quotes the same rule at p. 225 and at page 230 is given alist of other writers who have subscribed to these liberal views.
16. The above views have also been incorporated in their text books by themodern writers on Muhammadan Law. (See Mulla's Principles of Mahomedan Law 14thEdn. pp. 139, 142, 144 and 146, Tyabji's Muhammadan Law 3rd Edn. pp. 430-435,Sections 397-400, Amir Ali's Mahommedan Law Vol. 1, pp. 130-131).
17. The principles have further been applied in some decisions of the High Courtsin India. In Nabi Sab v. Papiah and ors. (A.I.R. (1915) Mad. 972.) it was heldthat gift did not necessarily fail merely because possession was not handedover to the minor's father or guardian and the donor could nominate a person toaccept the gift on behalf of the minor. It was pointed out that the Muhammadanlaw if gifts, though strict, could not be taken to be made up of meaningtechnicalities. A similar view was expressed in Nawab Jan v. Safiur Rehman(A.I.R. (1918) Cal. 786). These cases were followed recently in Munni Bai andanr. v. Abdul Gani : AIR1959MP225 , where it was held that when adocument embodying the intention of the donor was delivered to the minorpossessing discretion and accepted by her it amounted to acceptance of gift. Itwas further pointed out that all that was needed was that donor must evince animmediate and bona fide intention to make the gift and to complete it by somesignificant overt Act. See also Mt. Fatma v. Mt. Autun A.I.R. (1944) Sind.195, Mst. Azizi and anr. v. Sona Mir A.I.R. (1962) J. &; K. 4) and Mammad& ors. v. Kunhali & ors. 1962 K.L.J. 351.
18. In Md. Abdul Ghani v. Mt. Fakhr Jahan (1922) 49 I.A. 195, itwas held by the Judicial Committee as follows :
'In considering what is the Mohammaden Law on thesubject to gift intervivos their Lordships have to bear in mind that when theold an admittedly authoritative texts of Mohammedan law were promulgated therewere not in the contemplation of any one any Transfer of Property Acts, any RegistrationActs, any Revenue Courts to record transfers of the possession of land, or anyzamindari estates large or small, and that it could not have been intended tolay down for all time what should alone be the evidence that titles to landshad passed. The object of the Mohammedan law as to gifts apparently was toprevent disputes as to whether the donor and the donee intended at the timethat the title to the property should pass from the donor to the donee and thatthe handing over by the donor and the acceptance by the donee of the propertyshould be good evidence that the property had been given by the donor and hadbeen accepted by the donee as a gift.'
19. Later in Mahamad Sadiq Ali Khan v. Fakhr Jahan Begum (1932) 59 I.A. I,it was held by the Privy Council that at least between husband and wifeMuhammadan law did not require an actual vacation by the husband and a actualtaking possession by the wife. In the opinion of the Judicial Committee thedeclaration made by the husband followed by the handing over of the deed wassufficient to establish the transfer of possession.
20. These cases show that the strict rule of Muhammadan law about givingpossession to one of the stated guardians of the property of the minor is not acondition of its validity in certain cases. One such case is gift by thehusband to his wife, and another, where there is gift to a minor who has noguardian of the property in existence. In such cases the gift through themother is a valid gift. The respondents relied upon two cases reported in SunaMia v. S. A. S. Pillai (1932) 11 Rang. 109 where gift to a minor through themother was considered invalid and Musa Miya and anr. v. Kadar Bux I.L.R. 52 Bom. 316 P.C., where a gift by a grandfather to his minor grandsons when thefather was alive, without delivery of possession to the father, was held to beinvalid. Both these cases involve gifts in favour of minors whose fathers werealive and competent. They are distinguishable from those cases in which thereis no guardian of the property to accept the gift and the minor is within thecare either of the mother or of other near relative or even a stranger. In suchcases the benefit to the minor and the completion of the gift for his benefitis the sole consideration. As we have shown above there is good authority forthese propositions in the ancient and modern books of Muhammadan law and indecided cases of undoubted authority.
21. In our Judgment the gift in the present case was a valid gift. Mammottywas living at the time of the gift in the house of his mother-in-law and wasprobably a very sick person though not in marzulmaut. His minor wife who hadattained discretion was capable under Muhammadan law to accept the gift, wasliving at her mother's house and in her care where the husband was alsoresiding. The intention to make the gift was clear and manifest because it wasmade by a deed which was registered and handed over by Mammotty to hismother-in-law and accepted by her on behalf of the minor. There can be noquestion that there was a complete intention to divest ownership on the part ofMammotty and to transfer the property to the donee. If Mammotty had handed overthe deed to his wife, the gift would have been complete under Muhammadan lawand it seems impossible to hold that by handing over the deed to hismother-in-law, in whose charge his wife was during his illness and afterwardsMammotty did not complete the gift. In our opinion both on texts andauthorities such a gift must be accepted as valid and complete. The appealtherefore succeeds. The Judgment of the High Court and of the Courts below areset aside and the suit of the Plaintiff is ordered to be dismissed with coststhroughout.
22. Appeal allowed.