1. This appeal is directed against the judgment and decree of the Second Assistant Judge, City Civil Court, Madras in O. S. No. 224 of 1956, a suit for partition and possession of the plaintiff's share in the plaint schedule properties. The parties arrayed in the suit on either side were related in the following manner. The plaintiff, Abdul Rahm, the second defendant, Abdul Rahman and the fourth defendant,Ibrahim (who died after the suit and whose legal representatives have been subsequently added as defendants 6 and 7) were brothers. The third defendant is their sister. The fifth defendant is a purchaser from the fourth defendant. The first defendant Zalnath Bi is the daughter of the deceased Abdul Azeez. Out of the several items of property which constituted the schedule to the suit, we are concerned for the purpose of this appeal, with the proper shares to be allotted out of one item of immoveable property, namely, the house No. 9 Adam St. Madras and certainquestions regarding the cash left behind by Abdul Azeez and the adjustment to be made in regard to expenses incurred for the marriage of the first defendant including jewellery supplied to her by the plaintiff.
2. In regard to the house, the plaintiff alleged that it was purchased from his funds, and those of his mother in his name, under Ex. A. 1 dated 24-6-1931, and that he has been in possession ever since. The late Abdul Azeez seems to have been a prosperous tailor. He brought up the plaintiff, and they were very much attached to each other. Abdul Azeez suggested to the plaintiff to make a gift of the property to himself and his daughter, the first defendant, and made a promise, at the same time, that he would purchase for the plaintiff another house of similar value. On the above understanding, the plaintiff executed a gift deed, Ex. A. 2 on 14-3-1944, conveying the property to Abdul Azeez and his daughter, the first defendant. But no possession was delivered to the donees, because Abdul Azeez did not purchase another house as promised by him. The gift was also not valid under the Mahomedan law for another reason. At the time of the gift, the first defendant's father was alive, but in the gift, the first defendant who was a minor was represented not by her father but by one Mahomed Shereef Sahib, a relative of hers. Such a gift in which possession has not been taken on behalf of the minor by the father or other legal guardian was invalid under Mahomedan law. Plaintiff, however, was prepared to concede the right of the late Abdul Azeez in half share in house No. 9 Adam Street, and claimed the other half share for himself. There was a subsequent partition effected by mediators on 10-1-1951. But that partition was declared void and not binding in a prior suit O. S. No. 1007 of 1954. Hence, he has filed the present suit for partition. The plaintiff alleged that he was entitled to be reimbursed for Rs. 6050 which he had spent for the marriage expenses of the first defendant. He also represented that though a sum of Rs. 9000 was left behind by Abdul Azeez as cash assets, he (the plaintiff) had incurred several items of expenditure binding on the co-sharers and only a balance of Rs. 4700 now remained available for division. The plaintiff claimed 8/14 share in the house, No. 9 Adam St, that is, his half share, supplemented by his 1/7 share in the half share of the late Abdul Azeez.
3. The plea of the first defendant was that the house No. 9 in Adam Street was purchased by her father with his own funds in 1931. It was improved by him. The plaintiff had no money, and at the time of the purchase, he was a minor, but as a matter of sentiment 'expecting good luck', late Abdul Azeez purchased the property in the name of the plaintiff benami for himself. Just prior to the plain, tiff getting married, the plaintiff executed the gift deed Ex. A. 2 dated 13-2-1944, Which was in effect a deed of release relinquishing his title in favour of the late Abdul Azeez, and the first defendant. By virtue of the above re-linquishment, the first defendant is entitled to a half share in the house. She disputed the plaintiff's claim in regard to cash and in regard to the claim for marriage expenses. She also alleged that the plaintiff was barred by res judicata from putting forth any title to the suit property. The other defendants adopted the main contentions of the first defendant.
4. The trial Court found that the house was purchased by Abdul Aziz benami in the name of the plaintiff. Therefore! the gift deed Ex. A. 2 did not convey any interest in the property, because the plaintiff had no title to convey such interest. In the alternative, if it is assumed that the plaintiff was the real owner of the house, the trial Court found that the gift deed will not be valid to convey any interest to the first defendant, because she was net represented by her father as guardian for the purpose of taking possession of the gifted property, but some other person who had noright to ,be a guardian representing her, in the gift deed. The trial Court also found that the decision in O. S. No. 1007 of 1954 will operate as res judicata, so far as plaintiff and the first defendant, who were parties to the prior suit, are concerned but not as regards the other defendants who were not such parties. In regard to the cash left by late Abdul Azeez and for which the plaintiff had to account, the trial Court found that Abdul Azeez left a cash of Rs. 9000, that the plaintiff had accounted for an expenditure of Rs. 2250, and, therefore, he has to account for Rs. 6750. So far as the claim for marriage expenses of the first defendant was concerned, the plaintiff had to spend on the whole Ps. 4000 for the marriage; since the first defendant had her mother's jewels and no separate jewels were made. Plaintiff was given the right to reimburse himself for the expenditure from the share allotted to the first defendant. The amounts admittedly paid by him to the other sharers were also directed to be adjusted against the respective sharers. So far as the house is concerned, the plaintiff's share was determined as 1/7th and the share of defendant 1, 7/14. From the above decision, the plaintiff appeals.
5. In his memorandum of appeal, the plaintiff alleged that the trial Court should have found that he was entitled to the house property, and that the purchase was not a benami transaction; consequently, his share in the property would be his own half share, and his l/7th share in the late Abdul Azeez's 1/2 share, making up a total of 8/14. He also disputed the allowances made in regard to the marriage expenses and claimed that allowance should be made in his favour for expenditure on jewels for Rs. 2000 for the first defendant's marriage. There has been no cross-objection by the first defendant.
6. We will take up first, the argument based upon the benami nature of the purchase under Ex. A. 1 on 24-5-1931, which is a sale deed by one Pocker Moideen to the plaintiff. The consideration was made up of Rs. 700 paid as advance, Rs. 3300 paid before the Sub-Registrar, (tr Lordship after discussing the evidence (para 6) proceeded :)
7. Examining the evidence carefully, we are impressed by the fact that there is no conclusive evidence one way or the other, about the source of consideration for the purchase. The overall impression one gets from the evidence is that the father of the brothers, Mohamed Ghouse, was a prosperous tailor, and after his death, Abdul Azeez as well as the plaintiff engaged themselves in the same trade. It is also clear that Abdul Azeez did not want the purchase to be taken in his name, and it was decided that the plaintiff should be the purchaser. Though it was pleaded by the first defendant that the purchase was made in the name of the plaintiff to bring good luck, none of the witnesses referred to this fact. Therefore, there was no particular motive for entering into a benami purchase and selecting the plaintiff as a benamidar. In the above circumstances, we are of the opinion that full effect should be given to the title In the deed standing in the plaintiff's name. If an opinion is to be given about the source of the purchase money, we are not prepared to reject the evidence of plaintiff's witness that the plaintiff's father had left some funds part of which accrued to the plaintiff's mother and part to the plaintiff, that the funds of these two people were utilised for the purchase in the plaintiff's name, and that was the reason why the document was taken in the plaintiff's name and not in the name of Azeez. Admittedly the plaintiff was living in the house, and paying Corporation tax for several years.
8. Therefore, we differ from the finding of the trial lower Court and hold that the title in the house vested in the plaintiff, under the sale deed Ex. A. 1.
9. The second question for consideration is the effect of the gift, Ex. A. 2 dated 14-3-1944 by the plaintiff to Abdul Azeez and the first defendant. The relevant recital in the gift deed is given below:
'Settlement deed to G. Adbul Azeez (1); Zeenath Bibi (2) minor daughter of No. 1, aged 11 years, represented by her maternal aunt's husband and guardian, Mohamed Sheriff.'
The document recites that it took effect from the date of the execution, that the donees had accepted the gift and they were to take possession immediately with full rights. The guardian of the minor should hand over her share in the property to her on her attaining majority.
10. This gift is attacked on the ground that a gift deed to a Mahomedan minor, whose father is alive and has not been deprived of his rights and powers as guardian, will be valid, only if delivery of possession is given to the father; but delivery of possession to any other person even if it be expressed specifically as on behalf of a minor, will not constitute a valid gift under Mahomedan law. The relevant principles are collected by Mulla in his 'Principles of Mahomedan law', 14th Edn. In paragraph 155, the learned author states,
'No transfer of possession is required in the case of a gift by a father to his minor child or by a guardian to his ward. All that is necessary is to establish a bona fide intention to give'.
The above principle is gathered from the decision of the Privy Council in Musa Miya v. Kadar Buy, 54 Ind App 171 : AIR 1928 PC 108, where it was laid down,
'The general rule of Mahomedan law that a gift is invalid in the absence of delivery of possession, is subject to an exception in case of a gift to a minor by his father or other guardian. But this exception, should be strictly construed. It does not extend to a gift by a grandfather to his minor grandsons, if their father is alive..........'
In the case before the Privy Council, one Abdul Rasul before making a pilgrimage to Mecca, made an oral gift of his properties to his two grandsons who were minors at the time. There was no mutation of names, and no gift deed was executed. It also appears from the judgment that Abdul Rasul did not specify any person as guardian to accept the gift and take possession on behalf of the minors. It was in such circumstances that the Privy Council had to consider the general rule, that no transfer of possession is required in the case of a gift by a Mohamedan father to his minor child. The Privy Council held that the benefit of this exemption cannot be availed of by a grandfather in making a gift to his minor grandchildren.
11. In a case of the Rangoon High Court referred to by the lower Court, Suna Mean. v. S. A. S. Pillai, ILR 11 Rang 109 : AIR 1933 Rang 155, one Khalifa made a gift to his two minor grandsons through his daughter, and no one was appointed as guardian on their behalf to take possession. At the time of the gift, the father was alive. What was alleged was that the mother took possession of the property and managed the same. It was in such circumstances that the Rangoon High Court followed the Privy Council decision and held that there was no valid gift. It has to be pointed out, that these decisions are relevant to repel a claim, if it is made on behalf of a relation other than the father or other legal guardian of a Mahomedan minor for the benefit of the exception stated in Mullah's Mahomedan law, viz, that no actual delivery of possession is required when a father makes a gift to his minor child, ora legal guardian to his ward. But we are dealing in this case, with a situation where the donor had coupled in the gift, the father as well as the minor as joint donees; when it came to the gift in favour of the minor a near relation of the minor is expressly indicated as representing her for the purpose of accepting the gift. Since the father is a joint donee, his consent to this arrangement on behalf of the minor is also implicit. Therefore, the question that falls for decision in this case, is something different from what the Privy Council had to consider. The question is not whether the exception in favour of a gift by a father to a minor son is applicable, but the question that arises in this case is whether any one other than a father or other legal guardian can validly accept a gift on behalf of a minor. The Privy Council decision does not provide an answer to this question, because the question was not before the Privy Council in the present form.
12. Trevelyan in his book 'The Law relating to Minors' says,
'A minor can accept a gift, but his acceptance is voidable. Under Mahomedan law, there can be no valid gift without an actual change of possession; but, in the case of a gift to a minor, possession by the guardian, or by a trustee on behalf of the minor, or by a person acting as such, is sufficient .......... When the guardian is himself thedonor no formal delivery or change of possession is necessary, provided that it appears that there is on his part a real and bona fide intention to make a gift to the minor.'
Thus it would appear that there is no legal impediment preventing a person other than a legal guardian, for example, a trustee or a person acting as such trustee, from accepting a gift on behalf of a minor and taking possession. Such an acceptance will not make the gift invalid. We find this point accordingly.
13. The lower Court has referred to the fact that the prior decision in O. S. No. 1007 of 1954 will operate as res judicata. This point was not argued before us. But it is sufficient to point out that the prior partition suit was filed on the basis that there was a valid partition deed dated 10-1-1951 between the sharers and that the first defendant executed certain documents subsequently ratifying the arrangement. These transactions were found to be void and therefore the prior partition deed was held to be un enforceable, and the suit was dismissed. Therefore that decision will not have any effect on the present issue about the validity of the gift deed.
14. In view of the above, the plaintiff will be entitled only to 1/7 share out of Abdul Azeez's half share i.e., 1/14 share; strictly speaking the first defendant will be entitled initially to a half share under the valid gift, and then added thereto, a half share carved out of Abdul Azeez's half share. The trial Court has granted defendant 1, 7/14 share, and the plaintiff 1/7 share. Unfortunately, there has been no cross-appeal by the first defendant. In the absence of cross-appeal, we cannot reduce the larger share given to the plaintiff and enhance the lesser share given to the defendant 1 in the decree of the lower Court. It was faintly urged before us by the respondent's learned counsel that this being a partition suit, it is open to us to reallocate the shares, if necessary. But no authority has been shown to us that we nan do so without an appeal or cross-appeal by the party aggrieved. Therefore, we have to confirm the shares which the lower Court has allotted to the plaintiff and the other defendants in the decree.
15. As regards cash assets left by Abdul Azeez, there were no accounts or other documentary evidence, and thematter has to be decided exclusively on the oral evidence and the prior admissions of the parties. While the plaintiff said that the late Abdul Azeez left only a cash of Rs. 3000 the first defendant contended that it was Rs. 19000. Soon after the death of Azeez, there were complaints of illegal secretion of funds from his safe. An inventory was made by two advocates and their inventory showed that only Rs. 9000 cash was left behind. It is seen from paragraph 46 of the lower Court's judgment that at the trial the amount of Rs. 9000 was not seriously disputed. The lower Court allowed the expenses incurred validly as per certain receipts and deducted them, and thus the balance of Rs. 6750 was arrived at. We accept the correctness of this finding.
16. So far as the expenses for the marriage of the defendant 1 are concerned, the plaintiff's claim is that he had spent Rs. 7000 but he did not produce any accounts in that regard. On the other hand, the first defendant pleaded that the amount expended was only Rs. 3000. Reference was made to a voucher Ex. A. 7 signed by the first defendant and attested by her husband regarding the expenditure; but it is stated therein that the first defendant's uncle, Abdul Rahim performed her marriage at his own expense and cost as per particulars of cost given in the document, but he had done so out of philanthropic motives, and love towards her as his brother's daughter. It is clear, therefore, from the document that the plaintiff spent money for the marriage of his brother's daughter out of philanthropic motives and out of love for her. Therefore if a strict view is taken of the matter, he could not reimburse himself for any expenditure in that regard, as it was open to him to spend voluntarily any amount he liked for his brother's daughter. Therefore in the absence of any satisfactory evidence of the actual expenditure, incurred by the plaintiff on marriage, jewels etc., we are not inclined to make, any enhancement over what the lower (Court has allowed to the plaintiffs, viz., Rs. 4000.
17. The appeal is, therefore, dismissed. But in thecircumstances of the case, there will be no orders as tocosts.