1. This is a case of a gift of property by a Mahomedan grand-father in favour of his grandson. Two oases of gifts by Mahomedan grand-parents in favour of their grandsons have come before this Court in recent years. They are reported in Fakir Nynar Muhamed Rowther v. Kandaswami Kalathu Vandan I.L.R. (1911) Mad. 120 and Alamanaya Kunigiri Nabi Sab v. Murkuli Papiah (1915) 29 M.L.J. 733. The latter was a case similar to the present of a gift made to a grandson during the life-time of his father at a time when all the three lived together in the same house. One of these cases had the advantage of being heard by Ablur Rahim, J, and the other had the advantage of being heard by Tyabji, J. The whole question of gifts to minor sons has again been elaborately and learnedly discussed by Tyabji, J., in Rahiman Bi v. Fatima Bibi (1915) M.W.N. 430. From these rulings and from what the text books say on the subject it appears to be sound law that although delivery of seisin is necessary in the case of gifts by Mahomedans in order to complete the gift, yet where a father or grandfather is living with his minor son or grandson and makes a declaration of gift before any dispute arises, such a declaration would be sufficient to raise a presumption in favour of the latter that the former intended to complete the transfer. But in order to rebut that presumption, or on the other side to strengthen it, other indicia of the transfer of possession may be looked to, such as the attornment of tenants to the donee, the mutation of names in the Collector's registers and the application of the profits of the property gifted, as such facts may show that the alleged gift was or was not intended to operate as a transfer to the donee. It is also stated in Alamanaya Kunigiri Nabi Sab v. Murukuti Papiah (1915) 29 M.L.J. 733, that a gift to a minor will not fail merely because the person who takes charge of the subject of the gift on his behalf is not his father, and, at page 741, where a grandfather, father and son, all live together in one house, it will not materially affect a gift of lands which inmate of the house is in actual care of the minor, but if it be shown that the minor has the benefit of the produce of the lands that fact would indicate that transfer of ownership has been made. Now, in the present case the gift deed, Ex. A contains a declaration that henceforth the donee should have possession and hold the property by himself or through others, pay the Government revenue and the purapad due to the jenmis, attorn to the jenmis and take renewals from them in his own name when necessary, recover the properties in the possession of the tenants with the rent or cause them 'to attorn to him and so enjoy the properties for ever. There is a further statement that the documents of title were therewith given to the donee. In the schedule attached to this gift deed under the heading of possession the donee's name appears as the present possessor and the donor's as the previous possessor of the lands gifted.
2. The District Judge in his order observes that the 2nd and 3rd witnesses for the petitioner gave evidence that the grandson's parents acknowledged the gift in his favour. No such statement appears in their evidence, so far as we are able to see, and the respondent's pleader has been unable to refer us to any such statement. It is, however, in evidence that the revenue was paid on behalf of the minor and that he was enjoying the property. As this refers to a state of things which existed after the grandfather, Athan, died, it does not assist us in the determination of the question whether there was a transfer of possession during Athan's life-time. But on the other side the counter-petitioner adduced no evidence to show that Athan continued to enjoy the property even after he had gifted it away, and therefore the legal presumption remains that the minor, who was living with his grandfather, enjoyed the benefit not only of the house but of the produce of the lands also. The District Judge was therefore right in finding on the evidence before him that the gift was a complete and valid one and that the properties now sought to be proceeded against in execution were not liable to be attached for Athan's debts. The Civil Miscellaneous Appeal must be dismissed with costs.
3. The only point argued by the appellant's Vakil in this case is that the gift evidenced by Ex. A is invalid under the Muhammadan Law as it was not completed by the delivery of possession of the properties included in it, by the donor
4. Athan to the donee Assan Koya or to his legal guardian his father Pokku he being a minor. The District Judge rejected this contention and upheld the gift and after careful consideration I am inclined to think that his judgment is right.
5. No doubt the ordinary rule of Muhammadan Law is that a gift is not valid till it is completed by the delivery of the property given so far as it is capable of such delivery. This rule is stated by Sir R.K. Wilson in his book on Muhammadan Law para. 301 as well as by Mr. Ameer Ali in his book 4th Edn. Vol. 1, p 112: it is also stated in Bailee's Digest, page 520 and it has been recognised by the Courts. See Chaudhri Mehdi Hasan v. Muhammada Hasan I.L.R. (1906) A. 489, Vahazulla Sahib v. Boyapati Nagayya I.L.R. (1907) M. 519 and Ismal v. Ramji I.L.R. (1899) B. 682. The Privy Council recently held that the registration of the deed of gift is not a proper substitute for the delivery of possession. See Sadik Hussain Khan v. Hashim Ali Khan I.L.R. (1916) A. 627
6. There is however a well recognised exception to the above rule. It is stated by Sir R.K. Wilson in para, 303 of his book in the following words:
No transfer is necessary in the case of a gift by a father to his infant son, the declaration of the gift being considered to change the possession by the father on his own account into possession as guardian on his son's account, and the law is the same in every other case where the donee is a minor in lawful custody of the donor.
7. Though the gift in the present case was by the grandfather to the minor when his father was alive, it is found, and the finding has not been disputed by the appellant's Vakil, that at the time of the gift the minor was living with his grandfather under his care and in his custody. The parties are Moplas of South Malabar and as is usual among them Athan and several of his sons and their wives and children were all living together in the same house as one family. It was a matter of difference of opinion at one time between the early Muhammadan lawyers whether when the child was in the charge of the grandfather,--the brother, the mother or the uncle, a gift made to it by one of them or by a stranger could be validly taken possession of for him by the person in charge of the child when the father was present and capable of taking, and whether such acceptance was enough to validate the gift. It seems to be now settled that such acceptance is sufficient and the gift is good in law. This question is discussed at some length by Mr. Ameer Ali in his book Vol. I, pages 124 to 180. In Baillee's Digest also it is stated in the chapter on gifts that ' besides the father and the grandfather, the brother, the paternal uncle, the mother and other relatives have all on a favourable construction the power to take possession of a gift for a minor when he is in their family,' That being so where such a person makes a gift to a minor it follows that no express acceptance or transfer of passession is needed to complete the gift. The declaration of his intention to hold the property on behalf of the minor makes his possession thereafter the possession of the minor. The fact that the father of the minor is alive and present when such a gift is made does not affect its validity.
8. In a similar case of a gift by a grandfather to a minor grandson living with him in the same house, his father being alive, it was held by this Court that the absence of proof of delivery of possession of the subject of the gift to the minor's father was not fatal to the validity of the gift. See Alamanayakunigiri Nabi Sab v. Murukuti Papiah (1915) 29 M.L.J. 733.
9. I must therefore hold that the want of evidence of an actual delivery of possession of the properties by Athan to any one on behalf of the minor Assan Koya does not invalidate the gift to him.
10. The subject-matter of the gift in the present case was the kanom right under Ex. C that Athan had over the properties and not the properties themselves. The recitals in Ex. A show that Athan purported to transfer possession of the properties and hand over the documents, (apparently the kanom deed and the leases from tenants in possession) to Assan Koya; it is a fair inference from this that if he continued in possession, such possession was held by him on behalf of the minor. Mr. Justice Tyabji has held in the case already cited Alamanayakunigiri Nabi Sab v. Murukuti Papiah (1915) 29 M.L.J. 733 that 'the real question in these cases is whether after the gift the donee was given the benefit of the subject of the gift or whether its produce continued to be taken and dealt with by the donor and applied to his own benefit just as be had done before making the gift.' The question still remains whether the gift is to be held valid or invalid when there is no clear evidence on either side. There is I think a presumption in a case like the present where the minor is being fed and clothed and taken care of by the donor that the donor holds possession and collects the income on the minor's behalf; in fact it seems precisely on such a presumption that the actual transfer of possession necessary in ordinary cases of gift is dispensed with in the case of such minors under the Muhammadan Law. It is therefore clear that burden of proof in this case is not in the first instance on the minor or on any one who seeks to support the gift to show that the income of the property was spent for the minor's benefit. On the other hand, the person who seeks to invalidate the gift must show chat in spite of the gift the donor continued to deal with the property as if it was his own. This question did hot arise in Alanianayakunigiri Nabi Sab v. Murukuti Papiah (1915) 29 M.L.J. 783 as the finding submitted by the District Judge on which the gift was declared invalid ' was that the produce of the land was not applied to the use of the donee but on the contrary continued to be applied in the same way as it was before the alleged gift.' In the case in Rahiman Bi v. Mahomed Fatima Bibi (1914) 15 M.L.T. 345 the deed of gift itself showed that the donor (who was the father of the donee) purported to reserve in his own favour what in effect was a life-interest; it was on this ground that it was distinguished by one of the learned Judges who decided it, in his later judgment in Alamanayakunigiri Nabi Sab v. Murukuti Papiah (1915) 29 M.L.J. 783 see page 744; it is thus clearly distinguishable from the present case. There is no reliable evidence on the attaching creditor's side in this case to prove any act or condvuct on Athan's part inconsistent with the presumption that he held possession of the properties on the minor's behalf, after his gift to him. Athan died about 3 months after the execution of Ex. A. Though Ex. A provided that the donee should pay the Government revenue on the lands and the rent or purapad to the jenmi, Athan made no payments either for himself or for the minor as 'he died before they fell due; and when they did fall due there is 'reliable evidence to show that the minor's mother paid it on his behalf. She has ever since continued to make the payments as they became due from time to time. Athan's heirs apparently never objected to this course. The jenmi has recognised Assan Koya as the kanomdar under Ex, C and the tenants in possession of some of the lands included in the kanom Ex. C have attorned to him though no doubt all this was done after Athan's death. But no inference adverse to the validity of the gift can be drawn from, the fact that these things were not done in Athan's life-time as he lived only for a short time after the gift. What evidence there is in the case is thus in favour of the validity of the gift than against it. The gift was not disputed till Athan's creditor the appellant before us attached the properties in execution proceedings from which this appeal arises. In these circumstances it seems to me that there is no ground made out here for invalidating the gift.
11. If the transfer of possession of the properties gifted was required to validate the gift the burden of proof would have been as argued by the appellant's vakil, on the donee to prove that it was completed by delivery of possession by the donor during his lifetime. See Choudhri Mehdi Hasan v. Mahomed Hasan I.L.R. (1906) A. 439. But in the present case as I have already held the burden is on the appellant and not on him.
12. As the only point raised before us against the validity of Exhibit A fails, this appeal must be dismissed with costs.